P. v. Rodriguez
Filed 7/1/13 P. v. Rodriguez CA
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JORGE RODRIGUEZ,
Defendant and
Appellant.
H038431
(Monterey
County
Super. Ct.
No. SS120724)
In a negotiated disposition, defendant Jorge Rodriguez pleaded
no contest to carrying a loaded firearm in
a public place (Pen. Code, § 25850, subd. (a)(2))
and misdemeanor street terrorism (§ 186.22, subd. (a)) and admitted a
special allegation that he knew or reasonably should have known that the
firearm was stolen (§ 25850, subd. (c)(2)). The trial court suspended imposition of
sentence and placed him on felony probation for three years. On appeal, defendant challenges four of his
probation conditions as unconstitutionally vague and/or overbroad. We conclude that the “stay-away†condition is
impermissibly vague but reject defendant’s other contentions. We reverse the order and remand the case to
permit the trial court to clarify the stay-away condition.
I. Background
Because there was no preliminary examination, we take the facts
from the probation report.
On March 1, 2012,
Soledad Police Department gang officers e-mailed fellow officers that they had
received information that defendant “was in possession of a handgun with orders
to take out (kill) any Norteno gang drop out [sic] on sight.†Defendant
“was looking to put in work, or commit violent criminal acts for the gang,†the
e-mail explained, “to establish a name for himself within the Norteno Criminal
Street Gang.†On April 18, 2012, an e-mail sent out for officer
safety purposes advised that “Norteno shot callers (gang leaders) had ordered
street gang members to shoot gang drop outs [sic] on sight. They were
also ordered to wear black hooded sweaters, or sweatshirts with their hoods on
at all times.†The e-mail said defendant
had recently been seen in a YouTube video with known Norteños, openly wearing
gang colors, displaying gang signs, and showing gang tattoos. He had also been seen in photographs with
known gang members, some of whom had recently been arrested for a gang-related
drive-by shooting.
Around 6:00 p.m. on April 18, 2012, officers arriving for
a community presentation at a Soledad
middle school saw defendant, wearing a dark black and gray hooded jacket,
walking in front of the school. Aware
that he was on probation with search and gang conditions, officers searched him
for weapons and found a nine millimeter handgun concealed in the waistband of
his pants. The gun was “loaded with two
bullets,†and the magazine contained “eight live bullets.†A records check revealed that the gun had
been reported stolen in Bakersfield.
Defendant was arrested and booked into the county jail. He entered his pleas and admission in May,
was placed on probation in June, and filed a timely
II. Discussion
A. Stay-Away Condition
Condition No. 13 requires
defendant “to stay away from any public school unless you are a registered
student at that school or have permission in advance from your probation
officer.†Defendant contends that the
condition is unconstitutionally vague and unreasonably overbroad.
Citing this court’s decision in People v. Barajas (2011) 198 Cal.App.4th 748 (Barajas), the Attorney General concedes that a proximity descriptor
must be added. She suggests we modify
the condition to state that defendant must stay at least 150 feet away from any
public school. That “resolves part of
the problem,†defendant responds, “but still leaves unresolved the parameters
of the word ‘school.’ †The condition is also unreasonably overbroad,
he argues, because it appears to “banish†him from areas “where he legitimately
might be without any appreciable risk of increase in criminality†and from
areas “where he must be in order to further his rehabilitation.†We agree that the condition is vague and must
be modified, but we reject defendant’s overbreadth challenge.
A trial court has broad discretion
conditions “as it may determine are fitting and proper to the end that justice
may be done . . . and generally and specifically for the
probationer . . . .†(§ 1203.1, subd.
(j).) “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.]†(People v. Lent (1975) 15 Cal.3d 481,
486 (Lent), abrogated by Prop. 8 on another ground as noted in People
v. Wheeler (1992) 4 Cal.4th 284, 290-292.)
“The [Lent] test is clearly in the conjunctive, that is, the
three factors must all be found to be present in order to invalidate a
condition of probation.†(People v.
Balestra (1999) 76 Cal.App.4th 57, 65, fn. 3; see Lent, at p. 486,
fn. 1.)
“ ‘[P]robation is a
privilege and not a right, and . . . adult probationers, in preference to
incarceration, validly may consent to limitations upon their constitutional
rights . . . . [Citations.]’ [Citation.]â€
(People v.
(2010) 181 Cal.App.4th 943, 948.) But
“[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.).)
“[T]he underpinning of a vagueness challenge is the due
process concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the due
process concepts of preventing arbitrary law enforcement and providing adequate
notice to potential offenders’ [citation], protections that are ‘embodied in the
due process clauses of the federal and California Constitutions. [Citations.]’
†(Sheena K., supra, 40 Cal.4th at
p. 890.) “A
what is required of him, and for the court to determine whether the
challenge on the ground of vagueness.
[Citation.]†(
In Barajas, this
court concluded that the word “ ‘adjacent’ †in a probation condition prohibiting
the defendant from being “ ‘adjacent
to any school campus during school hours’ â€
rendered the condition impermissibly vague.
(Barajas, supra, 198 Cal.App.4th at p. 760.)
“At a sufficient distance, most reasonable people would agree that items
are no longer adjacent,†the court explained, “but where to draw the line in
the continuum from adjacent to distant is subject to the interpretation of
every individual probation officer charged with interpreting th[e]
condition.†(Id. at p. 761.) “To avoid
inviting arbitrary enforcement and to provide fair warning of what locations
should be avoided,†the court ordered the condition modified to replace “ ‘adjacent to’ †with “ ‘on
or within 50 feet’ †of any school
campus. (Ibid.)
We confront a similar issue here, because “away from†is a
relative concept. A person standing
across the street from a school is “away from†it, but so is a person who is
five blocks or five miles distant. The
condition must be modified to give defendant fair notice of how far “away†from
schools he must remain. The Attorney
General suggests that 150 feet is appropriate to protect the community, given
defendant’s conviction for carrying a loaded gun with which he allegedly
planned to “take out†Norteño gang dropouts on sight. Defendant does not propose a shorter
distance. That notwithstanding, we
believe the trial court is in the better position to determine just how far
away from public schools this particular defendant must remain. We will remand the case to permit the trial
court to make that determination and modify the condition accordingly.
Defendant contends that the stay-away condition remains vague
even with a proximity descriptor, because the meaning of “school†is
unclear. Is he prohibited, he asks, from
being a certain distance from a school building,
or from the entire school campus?
The condition in Barajas
enjoined the defendant from being “on or within 50 feet of any school
supra, 198 Cal.App. 4th 748, 763,
italics added.) We are not convinced, however, that
“public school campus†is significantly clearer than “public school.†Here again, the trial court is in the better
position to clarify the scope of the condition it imposed. The court may want to make the perimeter of
the school grounds the relevant reference point. Alternatively, it may want to order defendant
to remain a certain distance away from any school building. It may want to establish some other reference
point. We will instruct the trial court,
on remand, to clarify the scope of its prohibition.
We reject defendant’s contention that the stay-away condition
is unreasonably overbroad. “[A]
condition of probation which requires or forbids conduct which is not itself
criminal is valid if that conduct is reasonably related to the crime of which
the defendant was convicted or to future criminality.†(Lent,
supra, 15 Cal.3d at p. 486.) The condition the trial court imposed here
was expressly designed “to protect the community†and to “try to do something
to get people like this young defendant away from the gangs.†Defendant was arrested in front of a middle
school, armed and allegedly looking to “take out†Norteño gang dropouts on
sight. The condition ordering him to
stay away from any public school aims to protect that segment of the public
that his crimes suggested might be most at risk. We reject the contention that it does so at
the expense of defendant’s rehabilitation.
Contrary to his assertion, the stay-away condition does not “ban him
from areas where he must be in order to further his rehabilitation.†By its plain terms, it allows defendant to be
present as “a registered student†of a school, and it also permits his presence
on a school campus if his probation officer determines, in advance, that there
is a legitimate need for such an accommodation.
B. Curfew Condition
Condition No. 16 requires defendant “not to be out of your
home between 8:00 p.m. and 5:00 a.m. without prior approval of the
Probation Officer.†He complains that
the condition is overbroad. His crimes
did not occur during those hours, he argues, and it is unreasonable to require
an adult to obtain advance approval “every time he might be outside his home
past 8:00 p.m.†He suggests that a 10:00
p.m. curfew would be more appropriate.
We disagree.
The curfew condition satisfies the Lent test. (
First, it is related to defendant’s crimes—street terrorism and carrying
a loaded firearm in a public place. The
probation report highlighted jail booking records noting that defendant
admitted being a Norteño gang member and listed Sureños and gang dropouts as
his “enemies.†He was allegedly looking
for Norteño gang dropouts when he was arrested, having been ordered to shoot
them on sight. The trial court could
reasonably have concluded from these facts that he posed a significant danger
to the community that warranted significant limitations on his right to be
outside, especially at night. The court
expressly so concluded, as evidenced by its response when defendant protested
that he did not understand why he could not be out later. “The reason you can’t be out later,†the
court explained, “is because you’re a
gang member and people -- citizens in this community have a right to be free
from people like you, especially after dark, when you’re out there wearing your
hooded sweat shirt and carrying loaded guns around.â€
The curfew is also reasonably related to defendant’s future
criminality. (Lent, supra, 15 Cal.3d at
p. 486.) As the trial court made clear,
“[t]he Court has looked very carefully at the defendant’s history in this
matter and his contacts with gang members, and it’s very clear to the court
that the defendant is very involved in a criminal street gang in Monterey
County. Monterey County has a very significant
criminal street gang problem. . . .
These gangs create problems for each other. They kill each other. They hunt each other, and they torture each
other. . . . They cause no end of
disturbance within neighborhoods, within residences, and within families. . .
. The Court considers these conditions
necessary to try to do something to not only protect the community that are law
abiding citizens but also . . . to get people like this young defendant away
from the gangs. There are few things
that the Court can do. . . . [The
conditions imposed] are one of the few things that the Court has to try to
impact young defendants and keep them out of prison; keep them from continuing
this type of terror in our community.â€
Defendant argues that a 10:00 p.m. curfew would be more
appropriate. We disagree. The fact that he was arrested at 6:00 p.m.
does not mean the trial court abused its discretion in imposing the 8:00 p.m.
curfew, since there is no reason to believe that a gang member seeking to make
his mark by killing gang dropouts on sight would confine his activities to the
daylight hours. The court could
reasonably have concluded that such a person could be more dangerous after
dark, when he could more easily avoid detection.
We are not persuaded that the condition is overbroad simply
because defendant was, at 18, legally an adult when the trial court imposed the
curfew. “[P]robationary proscriptions
against gang-related conduct are equally proper when imposed upon adult
offenders . . . .†(People v. Lopez (1998) 66 Cal.App.4th 615, 625-626 [affirming broad
gang condition imposed upon a defendant “in his early twenties†as an
“essential element†of his rehabilitation].)
The curfew serves a rehabilitative purpose here. Defendant told the court that he wanted to
get a job and enroll in college upon his release from custody. He acknowledged the difficulty of staying
away from gang life but offered, “I’ll give it a try.†The 8:00 p.m. curfew aids his rehabilitation
in at least two ways—by making it easier for him to avoid situations that might
tempt him to engage in gang activities and by making it easier for his
probation officer to monitor his whereabouts and, ultimately, his compliance
with the gang-related conditions of his probation.
Defendant argues that it is “unreasonable†to require him to
obtain advance approval “every time he might be outside his home past 8:00
p.m.†The condition is not so
restrictive as he contends. It does not
preclude the probation officer from granting defendant categorical permission
to be outside after 8:00 p.m. for a specific purpose, such as attending an
evening class.
We conclude that the curfew condition (Condition No. 16)
requires no modification.
C. Gang-Gathering
Area Condition
Condition No. 17 requires defendant “not to visit or remain in
any area you know or have reason to know or are told by the probation officer
to be a gang gathering area. The terms
‘gang’ in these conditions refers to a criminal street gang as defined in . . .
Penal Code section 186.22.†Defendant
claims the condition is unconstitutionally vague because “gang-gathering areaâ€
is not defined. We disagree.
In Barajas, this
court concluded that a probation condition requiring the defendant “ ‘not to visit or remain in any specific
location which you know to be or which the probation officer informs you to be
an area of criminal street gang activity’ â€
was not impermissibly vague. (
condition suffices to give defendant fair warning of what areas to avoid and
ensures that he will not be found in violation due to a factual mistake,
accident, or misfortune.†(
condition defendant challenges includes a knowledge requirement that gives him
fair warning and protects him from arbitrary enforcement.
But what if he “stops to talk to a gang member who is sitting
on a bench,†defendant asks. “[D]oes
this become a ‘gang-gathering area?’ â€
“ ‘A probation
condition which either forbids or requires the doing of an act in terms so
vague that persons of common intelligence must necessarily guess at its meaning
and differ as to its application, violates due process.’ [Citation.]â€
(People v. Moore (2012) 211
Cal.App.4th 1179, 1184.) But the fact
that a defendant or his counsel can posit a hypothetical about the application
of a probation condition does not mean the condition is unconstitutionally
vague. Probation conditions need not be
stated so exactingly as to preclude any possibility of misinterpretation or
misapplication. (Barajas, supra, 198
Cal.App.4th at p. 762.) The law requires
“ ‘ “ ‘reasonable specificity,’ †’ â€
not “ ‘ “mathematical
certainty.†’ †(Ibid.) “ ‘In
deciding the adequacy of any notice afforded those bound by a legal
restriction, we are guided by the principle[] that “abstract legal commands
must be applied in a specific context.†’ â€
(Ibid.)
In the context of this case, defendant’s park bench
hypothetical is unpersuasive. The record
establishes that the trial court “very carefully†considered defendant’s
history and his gang contacts. It was
“very clear†to the court that defendant was “very involved in a criminal
street gang in Monterey County†and that his “life [wa]s very involved with the
gang culture here.†“He knows what those
gang gathering areas are,†the court concluded.
“He knows what residences those are.
He knows what locations those are.
They are not a secret. They are
not a secret to him. They are not a
secret to the probation department. They
are not a secret to law enforcement.â€
On similar facts, the court in In re Michael D. (1989) 214 Cal.App.3d 1610 rejected a vagueness
challenge to a probation condition requiring that the minor not “ ‘be present in any known gang gathering
area.’ †(Id.
at p. 1616.) The minor in that case “was
a self-confessed member of the Middleside gang in Santa Ana.†(Ibid.) He had been a member of the gang for five
years, “had been involved in fights as a result of his gang affiliation,†and
considered the gang members “ ‘his
brothers.’ †(Id.
at pp. 1616-1617.) “Given the facts of
this case,†the court concluded, “requiring minor to stay out of known
‘gang-gathering areas’ is neither unreasonably vague nor unconstitutional.†(Id.
at p. 1617; see also In re Ramon M.
(2009) 178 Cal.App.4th 665, 678 [“In cases involving gang members and
associates, courts have readily upheld prohibitions on the probationer’s
presence in gang gathering areas against challenges that such conditions were
vague, overbroad, and otherwise unconstitutional.â€].)
We conclude that the gang-gathering area condition (Condition
No. 17) requires no modification.
D. No New Tattoos
Condition
Condition No. 22 requires defendant to “not obtain any new
tattooing [or] change or add to any existing tattooing upon your person. Permit photographing of any tattoos you do
have.†He complains that the condition
is unconstitutionally overbroad because it applies to all tattoos, not merely gang-related ones, thus violating his
constitutional free speech rights. The
condition is also unreasonably overbroad, defendant maintains, because the
prohibition against changing any existing tattoo would prevent him from
all reasonably related to the state’s interest [in] deterring criminal behavior
. . . .†We cannot agree.
In In re Antonio C.
(2000) 83 Cal.App.4th 1029 (Antonio C.),
the Fifth District Court of Appeal upheld a probation condition barring a
15-year-old from obtaining any new
tattoos, reasoning that since minors are prohibited from obtaining permanent
tattoos with or without parental consent (§ 653
the challenged condition was analogous to the condition requiring him to obey
all laws. (Antonio C., at p. 1035.)
“Moreover,†the court held, “the condition is sufficiently related to
his rehabilitation, and is a reasonable exercise of the juvenile court’s
supervisory function to provide for his safety and protection.†(Ibid.) The court rejected the minor’s argument that
the condition infringed on his constitutional right to free speech: “Assuming, without deciding, that tattoos and
related skin markings constitute speech under the First Amendment [citation],
the probation condition does not unduly burden Antonio’s free speech
rights. The United States Supreme Court
has long held that while nonverbal expressive activity cannot be banned because
of the ideas it expresses, it can be banned because of the action it
entails. For example, burning a flag in
violation of an ordinance against outdoor fires may be punished, whereas
burning a flag in violation of an ordinance against dishonoring a flag may
not. [Citation.] Here, the probation condition, which is
content neutral, temporarily prohibits Antonio from self-expression through
permanent skin disfigurement. Its focus
is the manner in which the message is conveyed, not the message itself. As such, it constitutes a reasonable manner
restriction on Antonio’s free speech rights.â€
(Antonio C., at p. 1035.)
In In re Victor L.
(2010) 182 Cal.App.4th 902 (Victor L.),
the First District Court of Appeal upheld a probation condition prohibiting an
18-year-old from obtaining any new tattoos, noting that the language of the
challenged condition was almost identical to the language of the condition the
at p. 908.) “We are reluctant to hold
unconstitutional language which was specifically prescribed by another Court of
Appeal,†the court stated. (
The court rejected an age-related argument similar to the
argument defendant makes here. “The gist
of Victor’s argument appears to be that tattoo conditions of probation become
unenforceable after the probationer reaches age 18 because California law does
not prohibit the tattooing of a person over 18.
[Citation.] But he overemphasizes
the role of the penal law in this context.
We agree with the constitutional analysis of Antonio C. . . . , and
conclude that the prohibition on acquiring tattoos while on juvenile probation
is a proper condition for gang members or those at risk of becoming gang
members, regardless of their age, so long as they remain under the juvenile
court’s jurisdiction.†(
Observing that “[j]ust because it is lawful for an 18 year old
to get a tattoo does not mean it is wise,†the court refused to modify the
condition by limiting its prohibition to the acquisition of new tattoos “ ‘with gang significance.’ â€
(Victor L.,
929-930.) It did so for two
reasons. First, “[t]attoos are . . .
commonly worn by gang members to show gang affiliation. [Citations.]
Whether tattoos are gang related or not, a heavily tattooed appearance
tends to give rise to prejudices or suspicions about the tattooed
person—warranted or not—that could interfere with a ward’s future aspirations,
such as employment opportunities. Thus,
the prohibition on tattoos tends to steer wards away from gang appearance, gang
identity, and the social stigma sometimes attached to tattoos.†(Ibid.)
Second, “gang tattoos may employ obscure symbols not readily
recognized or catalogued as gang tattoos.
[Citation.] Thus, a complete ban
on new tattoos enhances the enforceability of the condition.†(Victor
L., supra, 182 Cal.App.4th at pp.
929-930.) Because these factors made the
tattoo ban part of a program of reform and rehabilitation, the total ban on new
tattoos “for the remainder of Victor’s probationary period [wa]s not
overbroad.†(Id. at p. 930.)
We find the reasoning of Antonio
C. and Victor L. persuasive. Although defendant is not a minor, we believe
a content-neutral prohibition on acquiring new tattoos while on probation is a
proper condition for adult gang members so long as they remain on probation
under the superior court’s jurisdiction.
Accordingly, we conclude that the no new tattoos condition (Condition
No. 22) requires no modification.
III. Disposition
The order of probation is reversed. On remand, the trial court is directed to
modify the stay-away condition (Condition No. 13) to clarify how far away defendant
must remain from a relevant reference point or points.
___________________________
Mihara,
J.
WE
CONCUR:
_____________________________
Premo,
Acting P. J.
_____________________________
Grover,
J.
name="_ftn1" title="">[1] Further statutory references are to
the Penal Code unless otherwise noted.
name="_ftn2" title="">[2] Section 653 provides in pertinent part
that “[e]very person who tattoos or offers to tattoo a person under the age of
18 years is guilty of a misdemeanor.â€
