P. v. Morales

Filed 6/22/06 P. v. Morales CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Antonio Del Rio Morales contends that gang conditions imposed on his probation are unreasonable and overbroad. We affirm.

FACTS

In January of 2004, Oxnard Police Officer Tom Webster stopped Morales for a traffic violation. Webster noticed the smell of marijuana in Morales's car. Webster searched the car, and recovered marijuana, methamphetamine, a glass pipe and brass knuckles.

Morales's probation report stated he had a "[f]ormer association w[ith] Colonia Chiques." Over Morales's objection, the trial court imposed "gang terms" as a condition of probation. The terms to which Morales objected were that he not associate with gang members, and that he not display or use any article of clothing or any other item which is evidence of affiliation with or membership in any gang.

DISCUSSION

Morales contends the trial court abused its discretion in imposing gang terms. He argues there is no evidence he is currently affiliated with a gang or that his crimes are gang related. He also points out that a single unexplained reference to former gang involvement is the only indication he was ever affiliated with a gang.

Trial courts have broad discretion to set conditions of probation. (People v. Lopez (1998) 66 Cal.App.4th 615, 624.) A condition of probation that forbids conduct which is not itself criminal is valid if the conduct is reasonably related to the crime of which the defendant was convicted or to future criminality. (Ibid.)

Here, even if the crime of which Morales was convicted is not related to gang activity, the trial court may consider future criminality in setting conditions of probation. (People v. Lopez, supra, 66 Cal.App.4th at p. 624.) The probation report stated that Morales is a former associate of a street gang. The trial court acted within its discretion in imposing probation conditions to ensure those ties become or remain completely severed. Although Morales emphasizes that his association with a gang is "[f]ormer," his current conviction shows he retains the propensity to commit crimes. The imposition of gang terms is prudent to ensure the temptation is minimized. A showing of current gang affiliation is not necessary. (Id. at pp. 624-625.)

Morales argues the conditions are overbroad in that they do not distinguish between legitimate and illegitimate meetings with gang members. But Morales does not suggest how the probation conditions could be worded to prohibit only "illegitimate" meetings with gang members. Any such broad language might itself be subject to challenge for vagueness. Nor is it possible to specify all of the various circumstances in which a meeting with a gang member will be a probation violation. Similar gang conditions have been upheld as against a constitutional challenge for overbreadth. (See People v. Lopez, supra, 66 Cal.App.4th at pp. 622, 627-629.) The conditions imposed here are not overbroad.

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

Ken W. Riley, Judge

Superior Court County of Ventura

______________________________

California Appellate Project, Jonathan B. Steiner, Executive Director, and Richard B. Lennon, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte, Supervising Deputy Attorney General, Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.

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