In re Sylvester A.

Filed 10/11/07 In re Sylvester A. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Jon N. Kapetan, Judge.

Robert L. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie Hokans, and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.

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The court readjudged appellant, Sylvester A., a ward of the court after Sylvester admitted allegations charging him with assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)).^[1] On February 8, 2007, the trial court placed Sylvester on probation on condition he serve 365 days in the Elkhorn Correctional Facility, Delta Program. On appeal, Sylvester contends: 1) the court erred when it denied his request for an evidentiary hearing to determine whether his offense was gang-related; 2) one of his conditions of probation is constitutionally vague; and 3) the minute order of his disposition hearing contains an error. We will find merit to these last two contentions. In all other respects, we will affirm.

FACTS

On October 28, 2006, Sylvester and three other male juveniles encountered Jose Morales and Armando Opopeza in Orange Cove and began barking at them. Morales told the juveniles he and Opopeza did not want any trouble. Nevertheless, Sylvester and his friends called Morales and Opopeza Sureos and scraps and attacked them. During the confrontation, Sylvester hit Opopeza on the head with a bicycle pump. One or both of the other juveniles stabbed Morales in the back and arm.

Sylvesters probation report indicated he admitted being a member of an Orange Cove gang. Under the Analysis and Plan section, the report noted [Sylvesters] actions appear to have been for the purpose of the furtherance and support of the activities of a criminal street gang.

During Sylvesters disposition hearing, the following colloquy occurred:

THE COURT: Hes to register with local law enforcement pursuant to section 186.30.

I believe, counsel, you were going to object to the recommendation; is that correct, Mr. Lamanuzzi [defense counsel]?

MR. LAMANUZZI: Yes. Were objecting to that order based upon the court making a finding without an evidentiary hearing that this was gang related.

DISCUSSION

The Gang Registration Requirement

Sylvester contends he had a right to respond to adverse information the court considered at his disposition hearing. Thus, he posits the court violated his right to due process when it denied his request for an evidentiary hearing so defense counsel could present evidence that his offense was not gang-related. We will reject this contention.

[A] courts registration order is based on a finding that the crimes the minor committed were gang related. This finding is supported by sufficient evidence only if there is evidence that is reasonable, credible, and of solid value supporting each element of gang relatedness. A crime is gang related if it is related to a criminal street gang as defined in section 186.22, subdivisions (e) and (f). The elements of this definition require: (1) an ongoing organization or group, (2) of three or more persons,(3) having as one of its primary activities the commission of the crimes enumerated in section 186.22, subdivision (e)(1)-(25), (4) having a common name or symbol, and (5) whose members individually or collectively have engaged in a pattern of criminal gang activity. This pattern of gang activity must consist of: (a) two or more of the offenses enumerated in section 186.22, subdivision (e)(1)-(25), provided that at least one offense occurred after the effective date of the statute; (b) the last offense occurred within three years of the one before it; and (c) the offenses were committed on separate occasions or by two or more persons. (In re Jorge G. (2004) 117 Cal.App.4th 931, 944.)

In People v. Arbuckle (1978) 22 Cal.3d 749, the court held a defendant has a right to present evidence tending to mitigate punishment or assist in the determination of his application for probation and is entitled to an opportunity to respond to adverse sentencing information. (Id. at p. 753.)

In so holding, the court stated,

Neither does the purported right of confrontation in these circumstances derive from the Sixth and Fourteenth Amendments to the federal Constitution or article I, section 15, of the California Constitution. In Williams v. New York (1949) 337 U.S. 241, 251 [93 L.Ed. 1337, 1334, 69 S.Ct. 1079], the United States Supreme Court concluded that the federal due process clause does not extend the same evidentiary protections at sentencing proceedings as exist at the trial. A sentencing judge may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or out-of-court information relative to the circumstances of the crime and to the convicted person's life and characteristics. [Citation.]

More directly, several courts have held the Sixth Amendment right of confrontation inapplicable at the sentencing stage of a criminal prosecution. [Citations.]

We have previously examined due process protection in the context of probation and sentencing hearings. While Williams [v. New York] does not require the same procedural safeguards at probation hearings as in the case of a trial on the issue of guilt, an applicant for probation is nevertheless entitled to relief on due process grounds if the hearing procedures are fundamentally unfair. [Citation.] Reliability of the information considered by the court is the key issue in determining fundamental fairness.

The defendant could have challenged factual statements contained in the report by presenting his own evidence; but fundamental fairness does not require that he be allowed to challenge such statements by cross-examining the personnel who prepared the report, nor does it require that he be permitted to challenge the professional methods they employed. (People v. Arbuckle, supra, 22 Cal.3d at pp. 754-755, italics added.)

Sylvester does not challenge the sufficiency of the evidence supporting the courts order requiring him to register as a gang member. Further, although the probation report did not recommend gang registration, it placed defense counsel on notice the court might order such registration through its statement that it appeared Sylvesters offense was gang-related. The above authorities make clear defense counsel had the right to present evidence at Sylvesters disposition hearing on the issue of whether Sylvesters offense was gang-related. Defense counsel apparently chose not to and instead requested a separate evidentiary hearing on this issue. However, we are not aware of any authority entitling him to such a hearing. Thus, we conclude the court did not deny Sylvester his right to due process when it denied Sylvesters request for a separate evidentiary hearing.

The Allegedly Vague Probation Condition

As a condition of probation, the court ordered Sylvester to obey all directives of [his] mother and father. Sylvester contends this condition is constitutionally vague and should be modified to read as follows: You are ordered to obey all lawful and reasonable directives of your mother and father. Respondent concedes this condition is vague and should be modified as suggested by Sylvester. We agree.

The concept of unconstitutional vagueness is related to the concept of unconstitutional overbreadth, but there are important differences. [Citation.] A clear and precise enactment may nevertheless be overbroad if in its reach it prohibits constitutionally protected conduct. [Citation.] The underlying concern of the vagueness doctrine is the core due process requirement of adequate notice:

No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. [Citations.] The operative corollary is that a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. [Citation.]

Thus, a law that is void for vagueness not only fails to provide adequate notice to those who must observe its strictures, but also impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. [Citation.]

A probation condition is subject to the void for vagueness doctrine, and thus must be sufficiently precise for the probationer to know what is required of him. [Citations.] (People v. Lopez (1998) 66 Cal.App.4th 615, 630.)

The condition at issue is vague because it fails to provide Sylvester with adequate notice of what conduct it forbids. This could cause Sylvester, at peril of life, liberty, or property, to speculate whether the condition compels him to obey an order by his parents which requires him to do something illegal. Accordingly, we agree with the parties that the probation condition at issue is vague and we will modify it as suggested.

The Minute Order

The court also ordered Sylvester not to associate with anyone whom [he knew] to be disapproved of by [his] parents or the probation officer. The minute order of Sylvesters disposition hearing erroneously indicates the court simply ordered him to comply with all directives of parents. Sylvester requests that we direct the trial court to correct the minute order for his disposition hearing to correctly reflect the courts order. Respondent concedes the above-noted minute order does not correctly memorialize the trial courts order. We agree and will order the court to make the requested correction.

DISPOSITION

The probation condition requiring Sylvester to obey the directives of his parents is modified to require Sylvester to obey all lawful and reasonable directives of his parents. The juvenile court is directed to correct its paperwork to reflect the modification of this probation condition. It is also directed to correct its minute order for Sylvesters disposition hearing to reflect that the court ordered Sylvester not to associate with anyone whom he knows to be disapproved by his parents or probation officer. As modified, the judgment is affirmed.

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^*Before Harris, Acting P.J., Levy, J., Kane, J.

^[1] Unless otherwise indicated, all further statutory references are to the Penal Code.