Filed 9/25/17 P. v. Villanueva CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment order of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed.

Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.

Jimmy Leon Villanueva appeals from a postjudgment order revoking his postrelease community supervision (PRCS). Villanueva argues the trial court erred by revoking his PRCS because the court order violated his First Amendment right of association. We disagree and affirm the order.

FACTS

In April 2014, a jury convicted Villanueva of possession of methamphetamine with the intent to sell (Health & Saf. Code §§ 11350, subd. (a), 11378), and the trial court sentenced him to two years in prison. In December of that year, Villanueva was released on PRCS (Pen. Code, § 3451).

In August 2015, a petition for revocation of PRCS alleged Villanueva tested positive for methamphetamine on six different occasions from December 2014 to March 2015 and failed to report to probation in March 2015. In August 2015, the trial court revoked and reinstated PRCS and ordered Villanueva to serve 90 days in jail.

In October 2015, a petition for revocation of PRCS alleged that during a compliance check of Villanueva’s residence, he possessed marijuana, two cell phones, a digital scale, and gang indicia regarding the Los Angeles Drifter gang (Drifter). The petition also alleged he tested positive for methamphetamine on two occasions in Fall 2015. In November 2015, the trial court revoked and reinstated PRCS and ordered Villanueva to serve 120 days in jail.

In January 2016, a petition for revocation of PRCS, the operative petition here, alleged Villanueva associated with an armed gang member and drug user on January 12, 2016, and he tested positive for methamphetamine and marijuana on January 4, 2016. Villanueva was a documented member of the Drifter gang. PRCS conditions required Villanueva to do the following: obey his probation officer; not possess or use any, or be with anyone who is possessing or using, drugs, including marijuana; and “[d]o not associate with anyone disapproved of by probation officer-no parolees, individuals under PCS status, known/suspected drug users or sellers, gang members/associates, inmates in prison or jail.”

At a contested hearing on the petition, Orange County probation officers Tracy Duran and Kelly McCleary testified. On January 4, 2016, Villanueva tested positive for methamphetamine and marijuana. Eight days later, Duran and McCleary went to Villanueva’s residence to conduct a PRCS compliance check. Duran knocked on the front door; she could see inside the residence through a window. McCleary went to the backyard and saw Villanueva. She ordered him to open the front door.

Duran watched as Villanueva, who was inside the residence, veered away from the front door and moved out of sight. Approximately 10 to 15 seconds later, Villanueva opened the door. Duran asked Villanueva if anyone else was inside the residence, and he said no. During her search, Duran discovered April Rodriguez hiding in a closet in one of the bedrooms. Rodriguez was a documented Drifter, who was also on PRCS and had an active warrant for violating PRCS. Officers found two syringes and marijuana in her purse and a folding knife in her pocket. Duran arrested Villanueva and Rodriguez.

Villanueva asserted he was engaged to Rodriguez and his association was constitutionally protected. Duran confirmed that in September 2015, Villanueva told her that he intended to marry Rodriguez. Duran acknowledged that if Villanueva wed Rodriguez, it was possible he might be able to live with her but it would depend on the recommendation of Rodriguez’s probation officer.

Investigator Spring Jaentsch testified Rodriguez stated she and Villanueva had obtained a marriage license and intended on marrying in October 2015. Rodriguez told Jaentsch they had not married because Villanueva was in jail. Jaentsch asked Rodriguez to testify and although she agreed, Rodriguez did not attend the hearing possibly because of transportation issues. The trial court revoked and reinstated PRCS and ordered Villanueva to serve 180 days in jail.

DISCUSSION

Villanueva argues the trial court erred by revoking his PRCS because he had a First Amendment right to associate with his fiancée and future wife. We disagree.

In 2011, the Legislature created PRCS as an alternative to parole for

non-serious, nonviolent felonies. (People v. Gutierrez (2016) 245 Cal.App.4th 393, 399.) A person on PRCS is subject to mandatory and other appropriate conditions. (Ibid.; Pen. Code, §§ 3453, 3454, subd. (b).) “The [First Amendment] right to associate . . . ‘may be restricted if reasonably necessary to accomplish the essential needs of the state and public order.’ [Citations.]” (People v. Lopez (1998) 66 Cal.App.4th 615, 627-628.) A PRCS condition that limits the right to association is permissible if it is “‘(1) primarily designed to meet the ends of rehabilitation and protection of the public and (2) reasonably related to such ends.’ [Citations.]” (Id. at p. 628, fn. omitted.) We review constitutional challenges to PRCS conditions de novo. (People v. Appleton (2016) 245 Cal.App.4th 717, 723.)

Here, the evidence demonstrated Villanueva, a Drifter member or associate who had repeatedly tested dirty, was in the company of Rodriguez, a Drifter gang member, who was on PRCS and possessed two syringes, marijuana, and a knife. Villanueva violated the terms of PRCS by being with a gang member who was on PRCS and was a known drug user or seller. Villanueva cites to no legal authority, and we found none, that establishes parties engaged to be married are afforded the same special status as those who are married. (See Obergefell v. Hodges (2015) ___ U.S. ___, 135 S.Ct. 2584, 2601 [discussing expanded list of rights afforded to married couples].) Thus, the PRCS condition prohibiting Villanueva from associating with those on PRCS, gang members, and drug users was designed to aid his rehabilitation and was reasonably related to that goal.

Additionally, PRCS conditions require Villanueva to obey his probation officer’s instructions. Here, after McCleary ordered Villanueva to open the front door, Duran saw Villanueva walk through the living room and disappear into an interior room. This evidence demonstrates Villanueva failed to follow his probation officer’s instructions. Additionally, when Duran asked him whether there was anyone else inside the home, he lied and said no. Rodriguez was hiding in the bedroom. This demonstrates Villanueva lied to his probation officer. Therefore, substantial evidence supports the trial court’s ruling Villanueva violated his PRCS and the court did not err in revoking PRCS. (People v. Gonzalez (2017) 7 Cal.App.5th 370, 381.)

DISPOSITION

The order is affirmed.

O’LEARY, P. J.

WE CONCUR:

ARONSON, J.

THOMPSON, J.