P. v. Leon
Filed 4/19/07 P. v. Leon CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, Plaintiff and Respondent, v. VICTOR LEON, Defendant and Appellant. | 2d Crim. No. B190806 (Super. Ct. No. 2006009472) (Ventura County) |
Victor Leon appeals from the judgment entered after he pleaded guilty to two counts of vandalism (Pen. Code, 594, subd. (b)(1)) and challenges a condition of his probation. He contends that the trial court abused its discretion by imposing a term of probation prohibiting his attending any court hearing or being within 500 feet of any court hearing in which he is neither a defendant nor under subpoena, and requiring him to inform the probation officer prior to any court appearance. We strike the challenged probation condition and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant has been known as "HOAX" since April 5, 2005, and he belonged to the "HA tagging crew." He used derivations of "HOAX," including "HOEK/HOEKS" and "HOAK/HOAKS." On February 26, 2006, graffiti was found on the buildings of PCA Packing Corporation and Lion's Gate Storage, two adjacent businesses in Oxnard. The graffiti included the names "HAC/HOEKS" and "HACK/HOAK/COMA." Appellant previously belonged to other tagging crews and was first known as a "tagger" in 2002.
On April 10, 2006, appellant admitted that he wrote the graffiti found in February on the Oxnard businesses. He said it was a stupid thing that he did "out of respect" for a friend who had passed away.
Appellant was charged with two felony counts of vandalism, and the prosecution alleged that each count was committed for the benefit of a criminal street gang. (Pen. Code, 594, subd. (b)(1), 186.22, subd. (b)(1).) After the court struck the gang allegations, appellant pleaded guilty to both vandalism counts.
During the probation and sentencing hearing, appellant's counsel requested that several proposed terms of his probation be deleted, including term 13, "the term for gang members and court hearings," prohibiting his presence within a 500-foot vicinity of court hearings. (Hereafter, we refer to this condition as the "court hearing ban.") Counsel added, "There's no 186.22 [criminal gang allegation] in this case, because this doesn't qualify as a criminal street gang." The prosecutor below did not articulate any reason why appellant should be subject to the court hearing ban, although he did object to reducing the vandalism offenses to misdemeanors. Appellant's counsel posed no objection to the probation condition prohibiting appellant's association with gang or tagging group members or wearing or displaying gang insignia.
The trial court ordered probation and included the court hearing ban among the probation conditions. The court reduced the vandalism offenses to misdemeanors and deleted other terms of probation at counsel's request, including those relating to drug and weapon offenses.
DISCUSSION
Appellant argues that the court hearing ban is invalid because it has no relationship to the underlying crime, relates to conduct that is not criminal, and forbids conduct that is not related to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486, superseded on another ground by Proposition 8 as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290-295.) We agree.
In this case, appellant's counsel objected to the court hearing ban, by claiming that the court hearing ban was gang-related and that "this doesn't qualify as a criminal street gang." This conveyed the objection that the court hearing ban had "'no relationship to the crime of which [appellant] was convicted.'" (People v. Lent, supra, 15 Cal.3d at p. 486.) While courts have broad discretion to impose probation "conditions to foster rehabilitation and to protect public safety," that discretion is not without limits. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120, 1121.) The reasonableness of a particular condition depends upon "'"'all of the circumstances being considered.'"'" (Id. at p. 1121.) A condition of probation is invalid if it (1) has no relationship to the crime of which the defendant was convicted; (2) relates to conduct that is not in itself criminal; and (3) forbids conduct that is not related to future criminality. (Lent, at p. 486.)
The prosecutor below presented no argument or statement in support of the court hearing ban. There is no relationship between the court hearing ban and appellant's criminal conduct. (People v. Lent, supra, 15 Cal.3d at p. 486.) The court hearing ban also forbids conduct that is neither criminal nor related to future criminality. Consequently, it is invalid. (Ibid.)
Appellant also argues that the court hearing ban is constitutionally overbroad. We need not address this argument.
The court hearing ban probation condition is stricken. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J.
We concur:
GILBERT, P.J.
PERREN, J.
Bruce A. Clark, Judge
Superior Court County of Ventura
______________________________
Kenneth I. Clayman, Public Defender, Michael C. McMahon, Chief Deputy, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Deputy Attorney General, Robert F. Katz, Supervising Deputy Attorney General, for Plaintiff and Respondent.
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