P. v. Castro

Filed 4/10/07 P. v. Castro 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Connie Castro was ordered to serve 320 days in jail after pleading guilty in case No. SS060650A to misdemeanor receiving stolen property (Pen. Code, 496)[1] and she was placed on felony probation after pleading nolo contendere in case No. SS060900A to taking a vehicle without the owners consent. The trial court imposed numerous conditions of probation, seven of which she now challenges. In a supplemental brief, she claims that counsel was ineffective for failing to object to the challenged conditions.

FACTS

On February 21, 2006, two Salinas Police Department officers spotted and stopped a stolen vehicle. Defendant was driving. The owner came to the scene and identified the vehicle and the keys which defendant had in her possession. Defendant told police that a male friend allowed her to borrow the car and that she did not know it was stolen. Later, she told investigators that her boyfriend steals vehicles and sells their parts to support his drug habit. Defendant said he gave her the keys to the car and she had an idea that the car was stolen.

DISCUSSION

Defendant complains that the court erred in imposing certain conditions of probation which bore no relationship to possession of a stolen vehicle or to future criminality and that counsels failure to object to some of the conditions at sentencing constituted incompetence of counsel. In light of the outcome, there was no incompetence of counsel. The challenged probation conditions, numbered as they are in the probation order, are:

9. Not use or possess alcohol/narcotics, drugs, or other controlled substances . . . [nor] traffic in, or associate with persons who use or traffic in narcotics or other controlled substances.

10. Submit to alcohol/narcotics tests.

14. Have no contact with victim, including telephone, written or second party contacts, or via computer.

17. Not be present in any known gang gathering area as directed by Probation Officer.

18. Not associate with any individuals known to be gang members or on probation or parole.

19. Not remain in any vehicle either as a passenger or driver which is known or suspected to be stolen or to contain any firearms or illegal weapon [sic].

20. Not possess, wear, use or display any item prohibited by the Probation Officer including, but not limited to, any insignia, emblem, button, badge, cap, hat, scarf, bandanna, or any article of clothing, hand sign or paraphernalia associated with membership or affiliation in a gang.

Section 1203.1 provides trial courts with broad discretion in fashioning probationary conditions which will not be found invalid unless (1) they have no relationship to the crime of which the offender was convicted, (2) relate to conduct which is not itself criminal, and (3) require or forbid conduct which is not reasonably related to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent); abrogated by Proposition 8 on another ground as recognized in People v. Wheeler (1992) 4 Cal.4th 284, 290-291.) The test is conjunctive; all three factors must be found in order to invalidate a probation condition. (People v. Balestra (1999) 76 Cal.App.4th 57, 65, fn. 3 (Balestra).) Conversely, 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.) Terms and conditions of probation are reviewed under the highly deferential abuse of discretion standard. (Balestra, supra, 76 Cal.App.4th at p. 63.) A sentencing court violates this standard only when its probation condition determinations are arbitrary, capricious, or exceed the bounds of reason, all of the circumstances being considered. (People v. Welch (1993) 5 Cal.4th 228, 234 (Welch).)

Defendant states that condition Nos. 9 and 10, the alcohol and narcotics provisions and the testing requirement, are improper because there was no evidence that she had a drinking or drug problem, or that she had used either before or during the offense, or that she was involved in any way in trafficking in narcotics.

The People counter that defendants failure to challenge the conditions when they were imposed at sentencing waives[2] the issue, citing Welch, supra, 5 Cal.4th at page 237. In addition, the People argue that the conditions were reasonable because defendant had a history of drug use as well as alcohol use and there is a nexus between property crimes and drugs. At the age of 13, [defendant] tried cocaine. At the age of 20, [defendant] was introduced to methamphetamine and admitted to snorting the substance on and off for one year. It was during this time that [defendant] lost custody of her two young sons, and they were later formally adopted. [Defendant] attended and completed the Genesis House drug program as well as a 16-month inpatient program at Pueblo Del Mar. [Defendant] voluntarily attended Alcoholics Anonymous and Narcotics Anonymous meetings and stated that she planned to continue attending the sessions. Defendant told the probation officer she had been completely sober for the past year and claimed she stopped consuming alcohol because she did not like its taste. Thus, there is clearly a history of drug and alcohol use.

[E]mpirical evidence shows that there is a nexus between drug use and alcohol consumption. It is well documented that the use of alcohol lessens self-control and thus may create a situation where the user has reduced ability to stay away from drugs. (People v. Beal (1997) 60 Cal.App.4th 84, 87.) A probation condition will be upheld particularly where those terms are intended to aid the probation officer in ensuring the probationer is complying with the fundamental probation condition, to obey all laws. (Balestra, supra, 76 Cal.App.4th at p. 69.)

Defendant contends that condition Nos. 17, 18, and 20, the gang conditions (to which counsel objected at sentencing) are improper because there was no evidence that the present offense was gang related or that defendant was a current gang member or was ever involved with gangs. (Original italics.) The only slight inference of [sic, reference to] gang involvement mentioned in the probation report comes from a juvenile disposition some fourteenyears earlier in which imposed gang conditions [sic]. This is insufficient to impose them for a non-gang related crime, when there is no evidence [defendant] is involved with gangs in any fashion (original italics) or that she had a present propensity to engage in gang activities. Therefore the gang conditions are not reasonably related to future criminality.

Here again, defendant ignores the record. At sentencing the court and defendant engaged in the following colloquy: THE COURT: Well, you have an interesting background. Your choice of partners has been different gang members. [] DEFENDANT: Yeah. [] THE COURT: You have a 14 apparently tattooed on you, and you say that you have been living with a guy thats a Sureno. [] DEFENDANT: Um-mm. [] THE COURT: And you do all that and leave the two children that still are your children with your aunts and have lost the two by, I assume, a different father. [] DEFENDANT: Yes, sir. [] THE COURT: Your Norteno friend, I guess. [] DEFENDANT: Actually, my husband. [] THE COURT: He is your husband? [] DEFENDANT: Yeah.

The probation report contained several references to defendants gang affiliation. She is classified by the Monterey County jail as a member of a gang. She has XIV tattooed on her left hand. Her half-brother is a gang member, and her choices of partners have been different gang members. At the time of the offense, defendant lived with her boyfriend, a Sureno and her husband is a Norteno. Defendant admitted her boyfriend is violent and had been shot several times and she admitted she was afraid to leave him. Defendant had chosen to live with her boyfriend rather than live with her pre-school age daughters who lived with various aunts. Defendant admitted she focused on her boyfriend rather than her children.

Gang conditions are reasonably designed to prevent future criminal behavior. (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1503.) [P]robationary proscriptions against gang-related conduct are equally proper when imposed upon adult offenders . . . [t]he path from gang associations to criminal gang activity is open to adults as well as to minors. (People v. Lopez (1998) 66 Cal.App.4th 615, 625.) A gang condition is proper where the defendant is an admitted gang member, but the offense was not related to gang activity. The gang-based conditions promoted the goal of rehabilitation and public safety by forbidding conduct reasonably related to future criminality. (Id. at pp. 625-626.) Defendant did not admit she was a gang member, but there is substantial evidence of her association with gang members in her family and romantic attachments. The automobile which she admitted possessing was the fruit of a crime by her Norteno boyfriend committed to support his drug use. The gang conditions imposed here were reasonably related to her criminal conduct and to future criminality.

Next, defendant asserts the component of condition No. 7, prohibiting defendant from being in a vehicle containing weapons, has no bearing or rational relationship to the instant offense. There is nothing indicating a weapon was involved, . . . [or that] she has ever suffered weapons charges, [or that] there is [any]thing in [defendants] past or present situation that has anything to do with weapons, legal or otherwise. Counsel did not object to this condition.

Although no weapons were involved in the underlying offenses, it was appropriate for the trial court to restrict defendants association with persons who possess firearms or weapons out of both a concern for public safety and to promote her rehabilitation. Defendant was a convicted felon. The condition relates to her offense in that, as a felon, she is prohibited from possessing firearms. ( 12021.) Beyond that, defendant lived in a gang environment. Gang activity and weapons are known to go hand-in-hand. (In re Frankie J. (1988) 198 Cal.App.3d 1149, 1154, fn. 4.) The trial court has broad discretion to impose any conditions it determines are fitting and proper to achieve justice and to support the reformation and rehabilitation of the probationer. ( 1203.1.)

Finally, defendant asserts that the challenged probation conditions were impermissibly vague and overbroad and that this is a pure question of law which is not waived on appeal. The People disagree, but recently, our Supreme Court has held that Welchs forfeiture rule should not extend to a facial challenge to the terms of a probation condition on constitutional grounds of vagueness and overbreadth. (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7.) Defendants challenge to the gang probation conditions presents an asserted error that is a pure question of law, easily remediable on appeal by modification of the condition. (Id. at p. 888.)

[A] probation condition . . . may be challenged as excessively vague. It is an essential component of due process that individuals be given fair notice of those acts which may lead to a loss of liberty. [Citations.] This is true whether the loss of liberty arises from a criminal conviction or the revocation of probation. [Citations.] [] Fair notice requires only that a violation be described with a reasonable degree of certainty . . . so that ordinary people can understand what conduct is prohibited. (In re Byron B. (2004) 119 Cal.App.4th 1013, 1018.)

Defendant claims that the seven conditions all fail because [t]here is no personal knowledge requirement in any of these seven challenged conditions. [She] has no fair notice of what conduct is prohibited. For example, she has no way of knowing if any of the people with whom she regularly comes in contact use or traffic in narcotics or whether they are gang members or on probation or parole. She probably does not know where the victim resides, works, shops, goes to church, or what vehicles the victim drives. Therefore, she cannot avoid those areas in order to avoid contact. Furthermore, there is no requirement that defendant personally know or suspect that a vehicle is or might be stolen or that it does or might contain weapons. Consequently, she asserts, the conditions should be stricken or modified to require scienter on her part.

Probation condition No. 14, to have no contact with the victim whether by telephone, written or second party contacts, or via computer, is not vague or overbroad. It is reasonably understood to prohibit defendant from knowingly and intentionally getting in touch with the victim--she may not personally meet, telephone, write, or send a computer message to the victim nor may she instigate another person to use any means to contact the victim for her.

Conditions No. 17, the presence in a gang area prohibition, and No. 20, the possession and display of gang insignia prohibition, are neither overbroad nor vague. The courts order with respect to the associational and gang insignia conditions satisfies the knowledge requirement because defendant will be specifically advised by her probation officer what gang associations and which gang indicia will violate her probation. The sentencing court could not reasonably be expected to define with precision all classes of persons which might influence defendant to commit further bad acts (In re Frank V. (1991) 233 Cal.App.3d 1232, 1243) or all gangs and gang paraphernalia.

However, we agree that in the absence of an express requirement of knowledge, two of the probation conditions imposed on defendant are unconstitutionally vague. (In re Sheena K., supra, 40 Cal.4th at p. 891.) Therefore modification to impose an explicit knowledge requirement is necessary to render the condition constitutional. Probation conditions 18 and 19 as currently phrased are deleted and new conditions are ordered as follows.

DISPOSITION

Probation conditions Nos. 18 and 19 are modified to read:

Condition No. 18: Defendant is not to associate with any individuals she knows to be gang members or whom she knows to be on probation or parole.

Condition No. 19: Not to remain as a passenger or driver in any vehicle which she knows or suspects is stolen or knows or suspects contains any firearms or illegal weapons. As so modified, the judgment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] Further statutory references are to the Penal Code unless otherwise stated.

[2] The correct term is forfeiture rather than waiver, because the former term refers to a failure to object or to invoke a right, whereas the latter term conveys an express relinquishment of a right or privilege. As a practical matter, the two terms on occasion have been used interchangeably. Because it is most accurate to describe the issue as whether a party has forfeited a claim by failure to object in the trial court, in our subsequent discussion we generally shall refer to the issue as one of forfeiture. (People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9.)