PEOPLE v. MENA

Appellant’s Petition for Review

Cal.June 19, 2009

S173973 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, No. S) ) ) Court of Appeal No. D052091 Plaintiff and Respondent, ) Vv. ) San Diego County Superior Court ) No. SCD205930 ) ) ) ) JOAQUIN MENA, by eg 8 Defendant andSaseieneR sureoun PETITION FOR REVIEW JUN 19 2009 Frederick K. Ohirich Clerk Appeal from the Judgment of the Superior Court of the State of California for the County of San Diego Deputy Honorable Bernard Revak, Judge John P. Dwyer, SBN 106860 LAW OFFICES OF JOHN P. DWYER 601 Van Ness Ave., Suite E-115 San Francisco, CA 94102- 415.885.4451 Attorney for Petitioner JOAQUIN MENA By appointment of the Court of Appeal under the Appellate Defenders, Inc. independent case system IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF No. S CALIFORNIA, ) ) ) Court of Appeal No. D052091 Plaintiff and Respondent, ) Vv. ) San Diego County Superior Court ) No. SCD205930 JOAQUIN MENA, ) ) ) ) Defendant and Petitioner. PETITION FOR REVIEW Appeal from the Judgment of the Superior Court of the State of California for the County of San Diego Honorable Bernard Revak, Judge John P. Dwyer, SBN 106860 LAW OFFICES OF JOHN P. DWYER 601 Van Ness Ave., Suite E-115 San Francisco, CA 94102 -~ 415.885.4451 Attorney for Petitioner JOAQUIN MENA Byappointment of the Court of Appeal under the Appellate Defenders,Inc. independent case system TABLE OF CONTENTS TABLE OF AUTHORITIES.......cccccccccccesccseeseceeeeseesneeseeeeseessaaesssesesaassaaasaeeeeeeeees iil TISSUES PRESENTED occccccc c} NECESSITY FOR REVIEW .0.c.cccccccceccecceessesesseeccsaecesseecesseeeessaseteesseteeeeseesaaeseaees 2 STATEMENT OF THE CASE....ccccccccccccccecsssseeesssseecnesseecessseeaeecececessettasseesenenees 4 COURT OF APPEAL DECISION. .........cceceecsssecceececsseeseeececseseeesesssasseesesssssnteeseces 5 STATEMENTOF FACTS.........cccessscsecssseccceusseescssscecsssseecsuserenseseeseceecsseeneaeeeesses 6 ARGUMENT....cccccccsssssscecseccecccesssscseeeeecesensseecceceesssaaaeecesceseeceeeesueseseeeeeseetienens 9 L. The Court OfAppeal Erred In Holding That Petitioner Forfeited His Right To Appellate Review Of The Trial Court’s Denial Of His Lineup Motion Because He Did Not Seek Review Via A Petition For A Writ Of Mandate ................ 9 I. The Court OfAppeal Erred In Holding In The Alternative That Any Error Was Harmless Beyond A Reasonable Doubt......... 14 CONCLUSION 00. .cecccccccccccecceeeeeeseeeeeeceeesesessessesessessensseceneseseaeceeeseeeeeeanseeeseeeerees 18 CERTIFICATE PURSUANT TO CRC RULE 8.504(G)(1) oo... cee eeceeeeseseeeeesesneeeeens 19 -ii- TABLE OF AUTHORITIES Cases Chapmanv. California (1967) 386 U.S. 8 .icccccccccccecesctsceseeseseeteeteeeeens 14 Evans v. Superior Court (1974) 11 Cal.3d 617 ooecceeesteteeee: 2, 6,9 Garcia v. Superior Court (1991) 1 Cal.App.4th 979 ooo. cceeceecceeeteees 10 Griffith v. Kentucky (1987) 479 ULS. 314 ecccccccecccccsscesseceseteeeetnseecseseesseens 16 In re Chuong D. (2006) 135 Cal.App.4th 1303 occcececsscsteecsssteeeens 12 Jacob B. v. County ofShasta (2007) 40 Cal.4th 948 ooo. cecceeneeesteeen 10 Kyles v. Whitley (1995) 514 U.S. 419 oo cccccccecccsseecsesessneeseesutessesesseeeens 16 People v. Batts (2003) 30 Cal.4th 660 oo... cccccccccccccsccssececeteeeseeteeessseees 3,11 People v. Conrad (2006) 145 Cal.App.4th 1175.0... cceeeeeereeeees 4, 12-13 People v. Farnam (2002) 28 Cal4th 107 ooo. cccccecccssseessseeeesseeeenseees 10-11 People v. Goodwillie (2007) 147 Cal.App.4th 695 ......cccccceceesssecsssseeeens 14 People v. Houston (2005) 130 Cal.App.4th 279 oo... cccccccccsseceessceeeessseeeeeees 17 People v. Martinez (2000) 22 Cal.4th 750 oo... cccccccccescesesseeeeceeeteteeseneeenens 12 People v. McDonald (1984) 37 Cal.3d 351 c..cccccccccccccesccecesseeeessseesteeeeneeens 16 People v. Memro (1985) 38 Cal.3d 658 wo....cccccccscecccsseessessseeessesseeeees 3, 10-11 People v. Mendoza (2000) 23 Cal.4th 896.00... ccccecseeeeeseeeeneeeeneeeenerees 16 People v. Navarro (1972) 7 Cal.3d 248 wo...cccccccccceccccseeeceseteeceescteeensteneesas 10 People v. Pearch (1991) 229 Cal.App.3d 1282 oo. cccccccesseceeseeeeeeseneeeeees 17 People v. Quartermain (1997) 16 Cal4th 600 oo... cccccecccceceeeeesteeeesntteteers 18 People v. Sullivan (2007) 151 CalApp.4th 524 ooo eeccceesceeesseestneentees 1] People v. Williams (1997) 16 Cal.4th 153 .o..ieceecceccsceersseeeesereeeneeeneeeees 10-11 People v. Wilson (1963) 60 Cal.2d 139 .o.cccccccccccccestseeceeceneeeeeceeeesenenneeeas 12 People v. Zamora (1980) 28 Cal.3d 88 occ cceccccesscccccsceecceeseceeeeessneeeeeneate 4,12 Stovall v. Denno (1967) 388 U.S. 293 oceeecesceescceesneeeseceeeetaeeeseeeeeaeeeesneeens 16 Sullivan v, Louisiana (1993) 508 U.S. 273 ...eceeccccccccsccesseceeeceeneeeeseeneeeeneeess 18 United States v. Jernigan (9th Cir. 2007) 492 F.3d 1050...eee 16-17 United States v. Wade (1967) 388 U.S. 218 woececccccescceceesttenteeseeteeetreetenatens 16 Verdin v. Superior Court (2008) 43 Cal.4th 1096.00... cceeeseseeesteeseee 10 Witte v. United States (1995) 515 U.S. 389 ieeeccesceseseeseneeseeeeetettesetesseeens 13 -iii- Constitutions Cal. Const., art. VI, § 13 cseesesssssusssuesististisesessisesesisisisisicluseseseveee beceeeeeees 12 ULS. Const., art. VI, Ch. 2 occ ccctccceseccsseeeeneeeescneeeeseeeeesseeenens beceeeeseeeeens 10 Statutes Pen. Code, § 186.22, subd. (D)(1) ooo. eceeeecececececeneeeeteeeceaeeceeeeeeseeeseeeeteateenes 5 Pen. Code, § 245, subd. (a)(1) occ ccccccceccccessesccesstecessnseeeeesssecessneesecseeeensaes 5 Pen. Code, § 1054 et SOQ. oo... iccccccccscesceeeeseeeeseececeeeeeseueeeeseaseaseceeteseseaeeeneas 10 Pen. Code, § 1054, subd. (€) oo... ccccccccccseccsseeeecseeeensseeeeesseseeesseccesteeeeens 10 Pen. Code, § 12020, subd. (a)(4) ....cceccccccccessccccesstscecssseeeesesecccsstsseeesneeeesaes 5 Rules of Court Cal. Rules of Court, rule 8.500 oo... ccccceccccccecceccseessseseceesseeceesecsceseeeueeeens 1 Cal. Rules of Court, rule 8.500(D)(1) ....cccccccccecsseeesessseeecssseceessseesenaes 3 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF _)_No.S CALIFORNIA, ) ) Court of Appeal No. D052091 Plaintiff and Respondent, ) V. ) San Diego County Superior Court ) No. SCD205930 JOAQUIN MENA, Defendant and Petitioner. PETITION FOR REVIEW TO THE HONORABLE RONALD GEORGE, CHIEF JUSTICE OF THE STATE OF CALIFORNIA, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT: Pursuant to Rule 8.500 of the California Rules of Court, petitioner Joaquin Menapetitions for review of the published decision of the Court of Appeal, Fourth Appellate District, Division One, filed on May 19, 2009, a copy of which is attached as Exhibit A. ISSUES PRESENTED Petitioner’s convictions for assault rested entirely on a highly suggestive showup. To demonstrate at trial the unreliability of that showup, petitioner timely requested a lineup. The trial court denied the motion, and petitioner was convicted. The Court of Appeal held that petitioner forfeited the right to seek appellate review of the trial court’s ruling because he did not seek writ review of the trial court’s ruling. The court also held in the alternative that the error was harmless beyond a reasonable doubt because the results of the lineup would have been cumulative of other evidence that the victim/eyewitness could no longer identify petitioner. The first holding conflicts with this court’s precedents, and the secondis based on an incomplete assessmentofthe record. Petitioner thus raises twoissues: Supreme Court precedent in analogouscases, that petitioner forfeited his right to seek appellate court review of the trial court’s denial of his lineup motion because he did not seek writ review. 2. Whether the Court of Appeal correctly held that even if the trial court erred in denying the lineup motion, the error was harmless beyond a reasonable doubt because the victim/eyewitness was unable to identify petitioner at the preliminary hearing and trial, where the Court of Appeal ignored (1) the prosecution’s argument that the non-identification was due to the victim/eyewitness’ fear of confronting petitioner in the courtroom; (2) that argument would not have been available if petitioner had been afforded a formal lineup and (as everyone expected) the victim/eyewitness would not have been able to identify petitioner; and (3) there was no significant evidence, other than the identification at the highly suggestive showup, of petitioner’s guilt. NECESSITY FOR REVIEW Petitioner was charged with being a part of a gang assault on two young men. Because there was no forensic evidence or incriminating statements establishing petitioner’s guilt, the case against petitioner turned entirely on the victim/witness’ identification of petitioner at a highly suggestive showup. Following his arraignment, petitioner timely moved for a line up. (See Evans v. Superior Court (1974) 11 Cal.3d 617, 625 [establishing a due processright to a lineup if certain criteria are met].) The trial court denied the motion, and petitioner was convicted of two counts of assault. Following his sentencing, petitioner challenged the denial of the lineup motion. 1. Departing from established Supreme Court precedent, the Court of Appeal created new criteria to decide when a defendant’s failure to challenging the ruling. This conflict between the decision below and this court’s opinions merits review. (Cal Rules of Court, rule 8.500(b)(1).) In People v. Memro (1985) 38 Cal.3d 658, a case involving an adverse ruling on a discovery matter, this court held that the failure to seek writ review did not preclude a direct appeal after considering (1) there is no statutory authority for such a requirement and several courts have reviewed discovery violations on direct appeal; (2) a writ requirement would impose unnecessary delay and expense; (3) a writ requirement would undercutthis court’s appellate jurisdiction in death penalty cases by resolving issues through the writ procedure in the Court of Appeal rather than by direct appeal to the Supreme Court; and (4) a requirement of writ review has been rejected in other contexts, such as violations of a defendant’s right to a speedy trial and to proceed pro se. (/d. at pp. 675-676.) Nearly 30 years later, in People v. Batts (2003) 30 Cal.4th 660, a case involving a double jeopardy violation, this court reaffirmed the reasoning in Memro and held that the failure to seek writ review does not preclude appellate review following final judgment. (7d. at p. 678.) Here, there is no dispute that each of Memro/Battscriteria favors permitting a direct appeal. Rather, the Court of Appeal disregarded the holdings in those cases and held instead that because it would be impractical to remand the case for a lineup following a direct appeal, the failure to seek writ review precludes a post-judgment appeal raising that issue. The Court of Appeal’s reasoning not only conflicts with Memro and Batts, it is based on the faulty assumption that a remand for lineup is the only possible remedy. In fact, as illustrated in other Supreme Court cases in which a defendant was denied potentially exculpatory evidence that is -3- not available at a newtrial, the proper remedy is a remand for a newtrial with a jury instruction allowing the jury to infer that if a formal lineup had People v. Zamora (1980) 28 Cal.3d 88, 102-103 People v. Conrad (2006) 145 CalApp.4th 1175, 1186.) 2. The Court of Appeal held in the alternative that any error in denying the lineup motion was harmless beyond a reasonable doubt because the victim/eyewitness was unableto identify petitioner at either the preliminary hearing or the trial. The Court of Appeal did not rule that the | ‘evidence of petitioner’s guilt was overwhelming, but instead held there was no additional evidentiary value in a lineup because the evidence already showed the eyewitness could no longer identify petitioner. In its Chapman analysis, the Court of Appeal ignored the prosecution’s argument that the in-court non-identifications reflected not a genuine inability to identify petitioner, but rather the victim/eyewitness’ fear of confronting petitioner in the courtroom. However, that argument would not have been available if the trial court had ordered the requested lineup, at which the witness would have been able to view petitioner, along with other similar-looking young men, behind one-way glass, and thus without fear of confronting petitioner. Because — as no one disputes — the eyewitness would not have been able to identify petitioner in the course of a fair lineup, and the only evidence supporting guilt was a highly suggestive showup,his failure to identify petitioner at a fair lineup would have fatally underminedthe case against petitioner. In these circumstances, respondent cannot meetthe stringent Chapman standard. STATEMENT OF THE CASE Petitioner wasarrested on April 13, 2007, and arraigned on April 18. (1 CT 89.01.)! On May 21, 2007, before the preliminary hearing, he moved for a pretrial lineup, which the trial court denied. (1 SCT 1; 1 CT 89.06; 1 RT 8-9.)” On June 19, 2007, petitioner was charged by information with two counts of assault with a deadly weapon (§ 245, subd. (a)(1)) and one count of carrying a concealed dirk or dagger. (§ 12020, subd. (a)(4).) The assault counts also included a gang allegation. (§ 186.22, subd. (b)(1).) Three others — Jorge Lopez, Adrian Pasillas, and Ricardo William Sanchez — also were charged with counts | and 2 and the gang allegation. (1 CT 1-4.) On October 11, 2007, Sanchez pled guilty. (1 CT 66.) On October 29, 2007, a jury found petitioner, Lopez, and Pasillas guilty as charged, and found the gang allegations to be true. (1 CT 120-123; 7 RT 805-806.) On November 29, 2007, the court placed petitioner on probation for three years on condition that he serve one yearin jail. (1 CT 84-87, 124; 7 RT 819-821.) On May 19, 2009, the Court of Appeal affirmed the judgment, with a modification, in a published opinion. COURT OF APPEAL OPINION Petitioner raised two issues below:(1) that the trial court erroneously denied petitioner’s timely motion for a pre-trial lineup; and (2) that two of the conditions of probation were unconstitutionally vague and overbroad. The court rejected the first argument, but agreed with the second. First, the Court of Appeal rejected petitioner’s lineup argument. Without deciding whether the trial court decision denying the motion ' “CT” refers to the Clerk’s Transcript; “RT” refers to the Reporter’s Transcript; “SCT” refers the Supplemental Clerk’s Transcript consisting of the lineup motion and twojuror notes. * Co-defendant Lopez filed the motion, but petitioner joined the motion. (See 1 CT 89.06; 1 RT 2.) violated petitioner’s due process right to a lineup (see Evans v. Superior Court (1974) 11 Cal.3d 617), the court held that petitioner forfeited his the decision via a petition for writ of mandate. (Opn. 6-8.) The Court of Appeal held in the alternative that any error was harmless beyond a reasonable doubt because the victim was unable to identify petitioner at either the preliminary hearing or the trial. (Opn.at 8.) Second, the Court of Appeal agreed with petitioner that two conditions of probation — barring his association with gang members and with persons possessing weapons — were unconstitutionally vague and overbroad because they did not include a knowledge element. Thatis, the conditions of probation contained no requirement that petitioner have knowledge that the persons to be avoided were gang members or were in possession of weapons. The Court of Appeal ordered the trial court to correct the order of probation to include a knowledge element. (Opn.at 9- 10.) STATEMENT OF FACTS At about 5 p.m. on April 13, 2007, 17-year old Jonathan F. and 16- year-old Jesus C. were walking west on Polk Street in San Diego after getting some food at a nearby Jack-in-the-Box. (2 RT 26-28, 126, 129- 130.) As they were crossing the intersection at Van Dyke, a red Ford and a white Cadillac stopped without warning in the intersection, with one occupant yelling, “How’s the East Side life treating you?” to Jonathan and Jesus. (2 RT 29-30, 72-75, 130-131.) Although Jesus and Jonathan responded that they were not involved in gangs (2 RT 31, 133), a dozen or so young Hispanic men immediately piled out of the cars and several of them started running after Jesus and Jonathan. (2 RT 31-33, 58, 78, 83, 133, 135, 149, 164.) One swungat Jesus, who began to run up Van Dyke being chased byat least two people, -6- including Pasillas, who was trying to stab Jesus. (2 RT 32, 35-39, 59-60, 79.) After he ran about half a block, Jesus realized he was no longer being chased.__(2 RT 81.) Jonathan wasalso chased as he ran up Van Dyke after he saw one of the young men with a baseball bat and another with a knife. (2 RT 134, 136.) One ofthe assailants hit Jonathan in the head with a baseball bat. (2 RT 137-138.) He was soon taken to a hospital, where he received nine stitches to close the wound and wasleft with a scar abovehis right ear. (2 RT 139-140.) The assailants drove off. (2 RT 141-142.) Both Jesus and Jonathan gave only general descriptions of their assailants — young Hispanic men with short hair or shaved heads. (2 RT 42, 55-56, 58, 135, 149.) They could not specifically describe the assailant’s clothing or state if they had tattoos. (2 RT 63-64, 148; 5 RT 540-541.) Their description of the assailants applied to many young men in the neighborhood, not just the numerous gang members, but also non-gang members. (2 RT 159, 224; 3 RT 257.) An experienced gang officer testified that nothing about petitioner’s appearance identified him as a gang member. (2 RT 223.) Following the assaults, police patrolled the neighborhood looking for the cars involved in the incident. About four blocks from the scene, two gang officers spotted a red car that roughly matched one of the cars involved in the incident (it later turned out to be the wrong car). (2 RT 170-171, 211, 251, 264.) They also noticed four young Hispanic men in the front yard of a nearby house — petitioner, co-defendants Lopez and Pasillas, and Robert Ferguson. (2 RT 171-172, 175-176, 207-209.) Petitioner was sitting in a chair onto which East San Diego gang graffiti > Gangs and gang members were rife in the area. An officer in a gang suppression unit testified that the East San Diego gang alone has 200 members and another 400 associates. (2 RT 202-203, 212.) -7- had been scratched. Police searched petitioner and found a steak knife in his pocket (this is the factual basis for count 3). (2 RT 204, 213, 230, 260.) the side yard. (2 RT 179-182, 233-234, 253, 263.) The police arranged for a showup with petitioner, Lopez, Pasillas, Ferguson and another young man found in the house, co-defendant Ricardo Sanchez. (2 RT 184.)* About 7 p.m., while it was still daylight, Jesus arrived in the back of a patrol car. The police presented the suspects one- by-one; each suspect was turned so that Jesus could view the front, side, and back for a couple of seconds. (2 RT 184-185:3 RT 288.) From a distance of 35-40 feet (which he described as “far away”), Jesus said that petitioner, Lopez, Pasillas, and Sanchez were involved in the assault.” Specifically, in response to the question whether petitioner was involved, he said only “yes.” (3 RT 290-294, 299, 305.) Jesus said that Ferguson was not involved because all the assailants were Hispanic and Ferguson was Anglo. (2 RT 45-46, 49, 51, 67, 88; 3 RT 294.) Attrial, Jesus testified that the four he identified at the showup had been chasing him during the attack. (2 RT 50, 54.) Jesus could not make an in-court identification of any of the defendants at either trial or the preliminary hearing. (2 RT 46- 48.) On May 9, 2007, the police showed Jonathan four six-pack photo arrays, one for each defendant. The only picture that he identified was petitioner’s, saying that the picture “looked like” one of the young men in the red car, but also that he was “not sure.” (2 RT 145-146, 156; 3 RT 347- 349.) The DA investigator wrote in his report that Jonathan could not make an identification. (3 RT 355, 359.) Jonathan could not make an in-court 4 During the trial, Sanchez was sometimescalled by his alias, Jesus Valle. > Jesus identified Pasillas as the person whotried to stab him. (3 RT 292.) -8- identification of any of the defendants at either trial or the preliminary hearing. (2 RT 146.) The prosecution put on evidence that East San Diego (also called East Side San Diego) was a criminal street gang (3 RT 386-401), and the gang expert gave his opinion that petitioner and Lopez were associates of the gang (3 RT 405-413) and that Pasillas was a documented memberofthe gang. (3 RT 413-417.) He also gave his opinion, in response to the prosecutor’s hypothetical question, that the assaults in this case were committed in association with and for the benefit of the East San Diego gang. (3 RT 417-419.) ARGUMENT I. The Court Of Appeal Erred In Holding That Petitioner Forfeited His Right To Appellate Review Of The Trial Court’s Denial Of His Lineup Motion Because He Did Not Seek Review Via A Petition For A Writ Of Mandate. In Evans v. Superior Court, supra, this court held that a defendant has a federal due processright to a pretrial lineup if he timely files a lineup motion and if “eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve.” (11 Cal.3d at p. 625.) In the trial court (and the Court of Appeal), there was no dispute that petitioner’s lineup motion was timely. Nor was there any dispute that eyewitness identification was a material issue.° The only disputed issue vis-a-vis the motion was whether there was a material likelihood of mistaken identification. The Court of Appeal, however, did not reach that issue because it held that petitioner forfeited his right to challenge thetrial ° Neither the prosecution nor the trial court claimed that the motion was untimely or that the eyewitness identification was not material. (See 1 RT 6-9.) Respondent did not contend otherwise on appeal. -9- court ruling because he did not file a petition for writ of mandate.’ The court’s holding conflicts with decisions of this court addressing the same issue in the context of other constitutional right violations In People v. Memro (1985) 38 Cal.3d 658, this court considered whether the failure to file a writ petition in the context of a discovery violation forfeited the issue on appeal following a final judgment. This court rejected the writ requirement for four reasons: (1) there is no statutory authority for such a requirement and several courts have reviewed discovery violations on direct appeal; (2) a writ requirement would impose unnecessary delay and expense; (3) a writ requirement would undercut the Supreme Court’s appellate jurisdiction in death penalty cases by resolving issues through the writ procedure in the Court of Appeal rather than by ’ The court requested supplemental briefing on whether the right in Evans was supplanted by the 1990 enactment of the discovery law (Proposition 115). (See § 1054 et seq.) In that briefing, petitioner explained that (1) under the plain language of the discovery law and several cases, the law applies only to discovery between the parties (compare Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1105 [holding that obtaining information from the defendant — namely, a party — was subject to the proceduresin the discovery law]; (2) since enactment of the discovery law, this court has twice affirmed Evans (see People v. Williams (1997) 16 Cal.4th 153, 235; People v. Farnam (2002) 28 Cal.4th 107, 183); (3) the discovery law expressly exempts discovery mandated by the federal constitution (see § 1054, subd. (e); Garcia v. Superior Court (1991) | Cal.App.4th 979, 986- 987); (4) a statute cannot trump a constitutional due process right (U.S. Const., art. VI, cl. 2 [supremacy clause]; Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 963 [statutes must conform to the California Constitution], conc. opn of Kennard, J.; People v. Navarro (1972) 7 Cal.3d 248, 260 [ “Wherever statutes conflict with constitutional provisions, the latter must prevail.”]); and (5) holding that a request for a lineup is a request for “discovery” would disrupt law enforcement investigations because there is no mechanism in the discovery statute to hold a lineup; yet there is no basis in the legislative history of Proposition 115 to conclude the voters intendedthis result. Notably, respondent agreed that Evans remains goodlaw. -10- direct appeal to the Supreme Court; and (4) the requirementhas been rejected in other contexts, such as violations of a defendant’s right to a speedy trial and to proceed pro se. (/d. at pp. 675-676.) Nearly 30 years later, in People v. Batts (2003) 30 Cal.4th 660, this court revisited Memro, explicitly adopted its reasoning, and reached the same conclusion in the context of double jeopardy violation. That is, although a defendant may seek pre-trial writ review, the failure to do so does not preclude appellate review following final judgment. (/d. at p. 678.) All the reasons cited in Memro and Batts are equally applicable to an erroneous denial of a defendant’s request for a pre-trial lineup. There is no statutory or case law authority for the proposition that a defendant must seek pre-trial writ review of the denial of a motion for a lineup, and there are several cases in which the matter was considered for the first time on direct appeal following a final judgment. (See, e.g., People v. Sullivan (2007) 151 Cal.App.4th 524, 560-561; People v. Farnam (2002) 28 Cal.4th 107, 183; People v. Williams (1997) 16 Cal.4th 153, 235.) In addition, establishing such a requirement would impose a burdensome expense on defendants and divert scarce time and resources from their trial preparation as well as from the appellate court. Moreover, given the practical constraints of trial practice, the issue is not likely to be briefed as thoroughly in a petition for peremptory writ as it would be on direct appeal. And, as Memro pointed out, requiring writ review could limit the Supreme Court’s jurisdiction, especially (but not only) in capital cases. As a result, absent clear legislative indication that a defendant mustfile a writ petition to seek review, such a requirement should not be established by judicial decision. Of course, waiting until after final judgmentto challenge the court’s ruling may comeat some cost to a defendant. A defendant need not show prejudice if he petitions pre-trial for review, but must demonstrate prejudice -11- if he waits until after final judgment to seek appellate review. (People v. Wilson (1963) 60 Cal.2d 139, 149-154; People v. Martinez (2000) 22 Cal.4th 750, 769; In re Chuong D. (2006) 135 Cal.App.4th 1303, 1311; Cal. Const., art. VI, § 13.) Below,petitioner argued that if he met the Evanscriteria for a lineup and demonstrated prejudice, the proper appellate remedy was a newtrial with jury instruction that (1) shortly after the incident and his arrest, petitioner requested a standard lineup in a neutral setting at which the victim/eyewitness would have been able to view petitioner and five similar looking young menin an effort to identify the assailants; (2) a lineup was not permitted even though petitioner had a constitutional right to a lineup; and (3) the jury may infer from these circumstances that the victim/eyewitness would not have been able to identify petitioner in the lineup as one ofthe assailants. (See People v. Zamora (1980) 28 Cal.3d 88, 102-103 [holding that where the defendant’s defense to a charge ofbattery on a police officer was that the officers used excessive force, and where the city attorney’s office in good faith ordered the destruction of past citizen complaints against the officers, thereby preventing the defendant from locating witnesses who could testify that the officers had used excessive force in other cases, the jury should be instructed that the officers used excessive force in the other cases and that they jury may infer that the officers were prone to use excessive force]; People v. Conrad (2006) 145 Cal.App.4th 1175, 1186 [holding that where the defendant was denied his constitutional right to a speedy trial, and where a potentially exculpatory witness died during the delay, the proper remedy wasto instruct the jury that the witness would havetestified as the defendant claimed he would; “This is not a perfect solution to the problem of lost evidence; however,it adequately addresses the loss of relevant evidence in a mannerthat affords -12- defendant due process anda fair trial while allowing the prosecution to go forward.”].) The Court of Appeal, however, rejected the holdings and reasoning in Memro and Batts on the ground that it would be impractical to remand the case for a lineup. Given the passage of time following a trial and the normal appeal process, such a lineup would have no evidentiary value — Le., as evidence of whether, near the time of the crime, the eyewitness/victim could identify petitioner. (Opn. at 7.) The decision, however, rests on a faulty assumption and logic — namely, that a remandfor lineup is the only possible remedy and that because waiting for an appeal would render that remedy worthless, a defendant should be compelled to seek writ review. Batts, which addressed this issue in the context of a violation of a defendant’s double jeopardy right, illustrates the error in the Court of Appeal decision. The double jeopardy clause not only bars a conviction following an earlier conviction (or acquittal), it also bars a secondtrial. (See Witte v. United States (1995) 515 U.S. 389, 415 fn.4 [“The Double Jeopardy Clause protects against the burdens incident to a secondtrial, and not just against the imposition of a second punishment”].) Yet, if a defendant waits until direct appeal to raise the issue, he will have lost forever his right not to be tried a second time. Such a defendant is not entirely without a remedy, however. If the defendant successfully raises the issue on direct appeal, his conviction following the second trial will be reversed. Here, also, a defendant who elects to vindicate his due process right to a lineup on direct appeal rather than by peremptory writ loses part of the benefit of the right — he will not get a lineup at which the victim/witness fails to identify the defendant. He also faces a greater burden on direct appeal — namely, to demonstrate prejudice. But if he -13- demonstrates prejudice, he still gets the benefit of a new trial with an appropriate jury instruction. I. The Court Of Appeal Erred In Holding In The Alternative That Any Error Was Harmless Beyond A Reasonable Doubt. The Court of Appeal held in the alternative that if the trial court violated petitioner’s federal due process right, the error was harmless beyond a reasonable doubt. (Opn. at 8; see also Chapman v. California (1967) 386 U.S. 18, 24; People v. Goodwillie (2007) 147 Cal.App.4th 695, 736 [federal due process error subject to Chapman standard].) The Court of Appeal did not claim that the evidence of petitioner’s culpability was _ overwhelming. Nor could it. (See pp. 15-17, post.) Instead, the court reasoned that because Jesus could not identify petitioner at either the preliminary hearing or thetrial, there was no prejudice in denying a lineup at which Jesus would have failed to identify petitioner. That is, according to the Court of Appeal, a lineup would not have changed the evidentiary balance. This holding was based on an incomplete assessment of the record. The prosecution faced a serious proof problem - Jesus and Jonathan could not identify the assailants at trial. It solved that problem by arguing that they would not makein-court identifications because they were afraid to do so in front of the defendants. It is a lot different sitting in that chair up there just a few feet away from some people that did some very violent things and being asked to look at those people and identify them as guilty parties as people whoparticipated, then [sic] it is to sit in the back ofa patrol car with armed officers in the front seat where those people can’t see you. I would submit to you he was scared stiff when he wasin here when I asked him to look around the courtroom. ... He could barely look over to the left side of the courtroom. His eyes flashed over there for a second and hesaid, “No, I do not -14- recognize anybody.” Heis scared stiff. He doesn’t live in this courtroom. They don’t have an armedbailiff like I told you. He’s got to go back and walk those streets. That is d ci ing was giving truthful, accurate testimony or not. It doesn’t change the fact that he didn’t ID them. What ?m saying is a failure to identify in court doesn’t mean that these defendant[s] are not guilty. This is the neighborhood that he lives in. These are the streets that he has to walk through. He is going to wantto go to Jack-in-the-Box again. He is going to want to walk wherever he wants to in that neighborhood. This is the filter that he is looking through. (5 RT 632-633; see also 6 RT 724.) That argument, however, would have been unavailable if there had been a formal lineup at which the victim had an opportunity to view petitioner along with other similar-looking young men behind one-way glass. If, as petitioner believes, the victim would have been unable to pick out petitioner from a fair lineup shortly after the crimes, the prosecutor could not claim that their inability to do so at the preliminary hearing and trial was simply a product of their fear of confronting their assailants. On the contrary, their inability to identify petitioner at a lineup would have grossly undermined the prosecution’s case. In reaching its decision using the stringent Chapman standard, however, the Court of Appeal took no account of the substantial role the prosecutor’s argument played in securing the convictions. It bears emphasizing that the evidence of petitioner’s guilt was underwhelming. The assault was chaotic and brief, thereby making it difficult for either Jesus or Jonathan to have a good lookat their assailants. According to the two victims — the only eyewitnesses to the offenses — two cars stopped suddenly and one occupant called out a gang challenge. Several young men chased Jesus and Jonathan, who fled. Jesus had run -15- only half a block when he realized the incident was over. (2 RT 81.) Both Jesus and Jonathan gave only general descriptions of the assailants — young, _____———sdHispanic_ withh d which, according to investigating officers and Jonathan himself, fit many people, including non-gang members,in the area. (2 RT 159, 224; 3 RT 257.) The presence of numerous other people in the “same area fitting the same physical description” ~ young, Hispanic male with shaved heads — “was bound to ‘substantially reduce[] or destroy[]’ the ‘value’ of the eyewitness testimony.” (United States v. Jernigan (9th Cir. 2007) 492 F.3d 1050, 1054, quotingKyles v. Whitley (1995) 514 U.S. 419, 441.) The “curbside lineup” was suggestive. Although a showup ~ where suspects are shown to the victim one person at a time — is not per se unconstitutional, the risk of misidentification from this procedure has been well known for decades. (See Stovall v. Denno (1967) 388 U.S. 293, 302, overruled on another ground in Griffith v. Kentucky (1987) 479 U.S. 314, 326.) Here, the suspects were shown oneat a time at a distance that Jesus described as “far away.” (2 RT 49, 66, 68; 3 RT 299.) Petitioner and the others were handcuffed. (6 RT 718.) Jesus was emotionally upset and frightened (2 RT 102-104; see also 2 RT 85-86 [Jesus stated that he was not sure of his identification at the showup because the event was traumatic and he was running as fast as he could to get away]), which exacerbated the well known dangers of uncorroborated eyewitness testimony. (United States v. Wade (1967) 388 U.S. 218, 228 [describing “the vagaries of eyewitness identification” as “well-known” and acknowledging numerous “instances of mistaken identification”]; People v. McDonald (1984) 37 Cal.3d 351, 363 [noting “the unreliability of eyewitness identification in the prosecution of criminal cases and the ‘high incidence of miscarriage of Justice’ caused by . . . mistaken identifications”], overruled on other grounds, People v. Mendoza (2000) 23 Cal.4th 896, 914; United States v. -16- Jernigan, supra, 492 F.3d at p. 1054 [describing eyewitness identification as “highly suspect” and the “least reliable” form of evidence].) The e j ing the line harmless by Jonathan’s testimony. His identification of petitioner in the photo lineup hadlittle probative value. Shown a six-pack of photographs, he said petitioner “looked like” one of the persons in the car, but told the DA investigator that he was “not sure.” (2 RT 145-146, 156; 3 RT 349.) His identification was so weak that the experienced DA investigator wrote in his report that Jonathan could not make an identification from the photo array. (3 RT 355, 359.) Jonathan’s inability to identify anyone is not surprising; not only was he struck in the head, as he testified at trial, the incident “happened fast.” (2 RT 157.) Further, when detained, petitioner did not confess or make an incriminating statement, and he was cooperative with police and did not attempt to flee. (2 RT 188, 200; 3 RT 257-258.) The prosecution did not present evidence that his fingerprints were on the baseball bats or the spray can founds near the bats. (3 RT 370, 377.) There was no evidence that the bats belonged to petitioner, that the bats were connected to the offenses, or that petitioner lived at the address where he wasarrested. (2 RT 222, 257, 272.) In fact, the record showed that petitioner lived elsewhere. (4 RT 452-453.) There was no evidence that the knife found in his pocket at the time of his arrest was connected to the assaults. Finally, the jury requested a readback of Jesus’ testimony. (1 SCT 14; 1 CT 116, 118.) Although not dispostive, a request for a readback is indication that the jury found the case close. (People v. Pearch (1991) 229 Cal.App.3d 1282, 1295 [“Juror questions and requests to have testimony reread are indications the deliberations were close.”]; but see People v. Houston (2005) 130 Cal.App.4th 279, 301 [a request for a readback does not necessarily indicate a close case].) Requesting a readback may be -17- interpreted as evidence of the jury’s conscientiousness, but that interpretation does not undermine the fact that the jury needed to review Jesus’ testimony before returning its verdict The case against petitioner rested on a single, suggestive identification. The circumstances of the assault prevented the victims from having a good look at their assailants. Most importantly, the prosecutor’s argument that Jesus did not identify petitioner at the preliminary hearing or at trial because he feared confronting them in the courtroom supports petitioner’s prejudice argument. Had the trial court granted petitioner’s lineup motion — thereby providing a police lineup at which petitioner would have been able to view petitioner and other similar looking young men behind one-way glass — the prosecution would have been unable to argue that Jesus’ failure to make an in court identification resulted from his fear in confronting his assailant. In these circumstances, respondent cannot show, beyond a reasonable doubt, that the verdict “was surely unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 273, 279; People v. Quartermain (1997) 16 Cal.4th 600, 621 [same].) CONCLUSION For the reasons discussed, this court should grant review. DATED:June 19, 2009 Respectfully submitted, Qo ohn P. Dwyer Attorney for Petitioner JOAQUIN MENA - 18 - CERTIFICATE PURSUANT TO CRC RULE 8.504(d)(1) _ I, John P. Dwyer, counsel for petitioner Joaquin Mena, certify document is 5,764 words, excluding the tables, this certificate, and any attachment permitted under rule 8.504(d)(3)._ This document was prepared in Microsoft Word, and this is the word count generated by the program for this document. I certify under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed, at San ohn P. Dwyer Attorney for Pétitioner Joaquin Mena Francisco, California, on June 19, 2009. -19- Exhibit A Filed 5/19/09 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D052091 Plaintiff and Respondent, Vv. (Super. Ct. No. SCD205930) JOAQUIN MENA, Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, Bernard E. Revak, Judge. Affirmed as modified. John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown,Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted defendant Joaquin Mena of two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1),! counts 1 & 2), and one count of carrying a concealed dirk or dagger (§ 12020, subd. (a)(4), count 3), and found true the special allegations that Mena committed counts | and 2 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The court placed Mena on probation. On appeal, Menaasserts the court abusedits discretion by denying his motion for a pretrial lineup, and the terms of his probation are vague and overbroad. FACTS The Attack On April 13, 2007, 15-year-old Jesus C. and 17-year-old Jonathan F. were walking home. As they crossed an intersection, two cars (each carrying several men) stopped in the intersection. An occupant from one car got out, asked the boys, “How's the East Side treating you?" and walked toward them. Jesus knew they were in an area claimed by the East Side gangastheir territory, and thought the man was an East Side member. Jesus replied "I don't bang," signifying he was not involved in any gangs. The man responded by swinginghis fist at Jesus; the other occupants of the cars got out and approached Jesus. One of the men had a baseball bat and another was holding a knife. Jesus and Jonathan began running and the men chased them. The man carrying the knife, two feet behind Jesus, swung the knife in Jesus's direction, trying to | All further statutory references are to the Penal Code unless otherwise specified. 2 stab him. The manyelled, "stop running orI'm going to shank you." Jesus ran about a block before his pursuers gave up the chase. A man carrying a bat and another man with a knife chased Jonathan. One manhit Jonathan in the head with the bat, knocking him to the ground; however, he wasable to get back up and continue running. When Jesus realized the men had stopped chasing him, he stopped and looked back. He watched the men return to their cars and drive away. The Investigation Jonathan wentto the hospital. An officer questioned Jesus at the scene to obtain a description of the assailants. Jesus stated they were Hispanic malesin their teens to early 20's, some ofwhom had shaved heads, but did not provide a more detailed description. These descriptions fit numerous personsliving in the area. After the assaults, police patrolled the area, looking for the cars involved in the attack. Police observed a car, roughly matching the description of one of the cars carrying the attackers, parked in front of a house just a few blocks from the site of the attack. Four males with shaved headsor short hair--later identified as Mena and codefendants Lopez and Pasillas and a Mr. Ferguson--weresitting in the front yard. When officers got out of their car, Pasillas and Ferguson ran inside. Mena and Lopez remained outside, sitting in chairs decorated with East Side gang graffiti. Police searched Mena and founda steak knife in his pocket. They also found a spray paint can and two freshly painted baseball bats in the front yard. Inside the house, officers found Pasillas hiding under the covers in bed, pretending to be asleep. Pasillas was sweating profusely and his shirt was damp with sweat. Healso had lacerations on his face and dried blood on his face, neck andshirt. The Curbside Lineup A few hours after the attack, police brought Jesus to the house for a curbside lineup. It wasstill light outside. Jesus remainedin the back seat of the police car as police brought each suspect, separately, to stand in front of the police car. There was some discrepancyas to the distance between Jesus and the suspects. One officer stated the suspects stood between 15 to 20 feet from the front of the car, and anotherofficer estimated the distance from Jesus to each suspect was 35 to 40 feet. The officers had each suspect turn to allow Jesus to view the front, sides and backs of each of them. Jesus identified Mena, Lopez, Pasillas and another man found inside the house (Mr. Valle) as being involved in the attack, but stated Ferguson had not been involved. Approximately one month later, police showed Jonathan four "six pack" photograph arrays, one for each suspect. The only picture Jonathan wasable to identify was Mena,but Jonathan stated only that he looked like one of the men involved in the attack, but he was not sure. ANALYSIS A. The Pretrial Lineup Motion Menaasserts the judgment of conviction must be reversed because the court erroneously denied his motion for a pretrial lineup, and this error was prejudicial under Chapman v. California (1967) 386 U.S. 18, 24. 4 The Motion One week before the scheduled preliminary hearing, a codefendant, Lopez, moved for an order compelling the police to conducta live physical lineup attended by Jesus, as provided under Evans v. Superior Court (1974) 11 Cal.3d 617 (Evans). The motion, in which Menajoined, argued there were sufficient grounds to order a lineup because there was a reasonable likelihood of misidentification by Jesus. The motion argued Jesus had minimal opportunity to observe the attackers before he started running away,his description of the attackers was minimal and he was equivocal whether he could identify the attackers before the requested lineup occurred, the curbside lineup was conducted under problematic conditions, and the fact there were numerousattackers of similar appearancesraised concerns about Jesus's ability to distinguish individual identities. The court denied the motion because it found there was no reasonable likelihood there was a mistaken identification that would be addressed by a lineup. Applicable Standards In Evans, the Supreme Court concluded "due process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate. The right to a lineup arises, however, only when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve." (Evans, supra, 11 Cal.3d at p. 625, fn. omitted.) The prerequisites for obtaining an Evans lineup are (1) a timely request for the lineup, (2) a showing eyewitness identification was a material issue, and (3) a showing a reasonable likelihood 5 of a mistaken identification existed that a lineup would tend to resolve. (People v. Farnam(2002) 28 Cal.4th 107, 184.) Analysis Wehave somereservations whether a defendant's right to seek an Evans lineup survived the enactment of Proposition 115. After the passage of Proposition 115, no discovery may occur in criminal cases "except as provided by [Penal Code sections 1054 through 1054.10], other express statutory provisions, or as mandated by the [federal] Constitution... ." (§ 1054.) A lineup under Evansis not provided by either the provisions of sections 1054 through 1054.10 or any other express statutory provisions, and therefore is only obtainable if expressly mandated by the federal Constitution. Although some passages in Evans suggest a defendant's right to seek a lineup is rooted in the due process clause (see, e.g., Evans, supra, 11 Cal.3d at p. 625), other passages in Evans suggest the right to seek a lineup was necessary to ensure fairness in pretrial discovery. (Ud. at p. 622.) However, becausethe parties in this case (responding to our request for supplemental briefing on this issue) agree Evans survived the passage of Proposition 115, we proceed on the basis of that assumption. Menaarguesthetrial court abused its discretion by denying the motion. We conclude, even assumingthetrial court erred by denying the motion, Menais notentitled to reversal of his conviction. First, we conclude a defendant's right to relief is waived if he does not challenge an adverseruling by a timely pretrial petition for a peremptory writ. The Evans court expressly conditioned the right to seek a lineup on a timely request (Evans, supra, 11 Cal.3d at p. 626), and enforced the newly minted right in the case 6 before it by issuing a peremptory writ compelling the trial court to hold a lineup before trial. Ud. at p. 627.) The Supreme Court in People v. Baines (1981) 30 Cal.3d 143 explicitly recognized the "value of a pretrial lineup is substantially diminished once a preliminary examination has been conducted and a direct confrontation between a defendant and his accusers has occurred." (/d. at p. 148.) When trial court denies a request for a pretrial lineup, and the defendantelects not to challenge the ruling by writ, the delay effectively thwarts the purposes served by the right conferred under Evans and prevents a court reviewing the claim on appeal from the conviction from fashioning any appropriate relief evenif it finds error. (Cf. Reid v. Balter (1993) 14 Cal.App.4th 1186, 1195-1196 [becausefailure to challenge ruling by writ petition thwarted purposes served by statute, appellant barred from raising issue on appeal from adverse judgment].) Ifa defendant forgoes writ review of the lineup ruling, and instead undergoesa preliminary hearing andtrial, the witness will have ordinarily viewed the defendantat the preliminary hearing and/or at trial. Even if an appellate court reversed and ordered a lineup on remand,the results of that lineup would have no evidentiary value: a positive identification would be tainted by the fact the witness saw the defendant at trial, and a negative identification would be tainted by the lengthy passage of time during which fading memories and changing appearances would operate. Mena concedesherethat reversal coupled with an order to conduct a lineup on remandis not appropriate because it would have "no evidentiary value"in a latertrial. We recognize several cases have discussed alleged error in denying an Evans lineup on appeal from the judgmentof conviction. (See People v. Sullivan (2007) 151 7 Cal.App.4th 524, 560-561; People v. Farnam, supra, 28 Cal.4th at pp. 183-184; Peoplev. Williams (1997) 16 Cal.4th 153, 235-236.) However, because those cases found the ruling wasnot error, they had no occasion to consider whether a ruling that was error would be waived if not raised by writ. Because of the uniquely ephemeral nature of the rights conferred by Evans, we conclude the requirementof timely pursuit of a lineup includes timely review of an adverse ruling by writ proceedings, and failure to pursue writ relief waives the claim of error. Even assuming the claim oferror is preserved andthe trial court abusedits discretion when it denied the motion, we conclude any alleged error was harmless beyond a reasonable doubt. Menaasserts the erroneousruling deprived him of evidence that Jesus would not have identified him in a lineup conducted in June of 2007 (near the time of Mena's Evans motion), and we should reverse and instruct the jury on remandto that effect. However, Jesustestified at trial that he did not recognize Menaas oneofhis attackers, and he had not been able to identify Mena as one ofhis attackers in June of 2007 when he saw Menaat the preliminary hearing. Thus, the jury convicted Mena despite having the benefit of testimony substantially identical to the evidence Mena claims he was deprived of by the erroneousruling on his Evans motion. Underthese unique circumstances, we conclude any deprivation resulting from denial of Mena's request for a pretrial lineup was harmless beyond a reasonable doubt. B. The Probation Conditions Menaarguesthe court imposed two "nonassociation" conditions of probation2 that violate due process for vagueness and overbreadth becausethere is no requirement Mena have knowledge the persons with whom he may not associate are members of the specified gang or have weaponsin their possession. Although the People concede one of the conditions (condition 12(f)) must be modified to insert a knowledgeprovision,they argue condition 12(b) is proper becauseit requires that Mena "[n]ot associate with any known gang members or persons whoareassociated with the East San Diego gang," and therefore contains the requisite knowledgelimitation. Menaargues, and the People in effect concede, a probation condition that bars the probationer from associating with persons possessing specified characteristics cannot imposestrict liability on the probationer. Instead, the condition must include an "express requirement of knowledge" by "explicitly direct[ing] the probationer not to associate with anyone 'knownto [possess the specified characteristic]." (In re Sheena K. (2007) 40 Cal.4th 875, 891-892; accord, People v Turner (2007) 155 Cal.App.4th 1432, 1436.) The People asserts condition 12(b) satisfies Sheena K. and obviates any vagueness or overbreadth concerns because it requires that Mena "[n]ot associate with any known gang members or persons whoare associated with the East San Diego gang"(italics added), thereby supplying the requisite scienter requirement. However, we agree with 2 Condition 12(b) requires Mena "[n]ot associate with any known gang memberor persons whoare associated with the East San Diego gang," and condition 12(f) requires Mena "{n]ot associate with any persons who havefirearms or weaponsin their possession." Menathat condition 12(b) precludes Mena from associating with two distinct classes of persons: "gang members"and "persons whoare associated with the East San Diego gang." The knowledge requirement may apply to the former group, but grammatically does not apply to the latter group. We are "empowered to modify a probation condition to render[it] constitutional" (People v. Turner, supra, 155 Cal.App.4th at p. 1436), and we therefore modify condition 12(b) to read: "Not to associate with persons he knowsto be gang membersor he knowsto be associated with the East San Diego gang." As so modified, condition 12(b) doesnot violate due process. DISPOSITION The order of probation is modified as follows: probation condition 12(b) is modified to read: "Not to associate with persons he knows are gang membersor he knowsare associated with the East San Diego gang"; and, probation condition 12(f) is modified to read: "Not to associate with persons he knowsto have firearms or weaponsin their possession." Thetrial court is directed to forward a copy of the corrected order to the probation authorities. As so modified, the judgment is affirmed. CERTIFIED FOR PUBLICATION McDONALD,J. WE CONCUR: NARES,Acting P. J. AARON,J. 10 PROOF OF SERVICE I declare that I am over the age of 18, not a party to this action and my business address is 601 Van Ness Ave., Suite E-115, San Francisco, CA OO thebelow,PETITIONFORO REVIEW to the following parties hereinafter named by placing a true copy thereof, enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at San Francisco, California, addressed as follows: Clerk, Court of Appeal Fourth Appellate District, Div. | 750 B Street, Suite 300 San Diego, CA 92101 Attorney General’s Office P.O. Box 85266 San Diego, CA 92186-5266 Joaquin Mena $312 Oak Park Dr. San Diego, CA 92105 Howard C. Cohen Appellate Defenders,Inc. 555 West Beech Street, Suite 300 San Diego, CA 92101 Clerk, San Diego County Superior Court [for Judge Bernard Revak] 222 West Broadway San Diego, CA 92101 San Diego County District Attorney’s Office 330 West Broadway ” San Diego, CA 92101 I declare under penalty of perjury the foregoing is true and correct. Executed this 19th day of June 2009 at San Francisco, California. Fe - 20 -