P. v. Robles

Filed 7/18/07 P. v. Robles CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

The defendant in this case, David Robles, pleaded guilty to petty theft with a prior enumerated offense that resulted in incarceration (Pen. Code,  666; see id.,  484, subd. (a))^[1] and admitted having served a prior prison term ( 667.5, subd. (b)). The trial court sentenced him to the upper term of three years for the aggravated petty theft offense and imposed a one-year sentence for the prior prison term enhancement. It stayed execution of sentence and placed defendant on probation subject to a number of conditions, including service of 365 days in jail.

On appeal, defendant contends that some of the probation conditions the trial court imposed are invalid and that if we find his claims regarding them forfeited, counsel was ineffective for failing to raise them in the court below.

We agree with defendant in part and disagree in part. We agree that the language of some of the probation conditions he challenges is inartfully drafted and imposes requirements on him that are constitutionally dubious or infirm. We will resolve the problem by directing the trial court to modify the language of those conditions in accordance with constitutional and state law norms. We will otherwise affirm the judgment.

FACTS

A Safeway store employee caught defendant stealing seven bags of frozen shrimp. When police contacted defendant, he admitted having stolen goods from Safeway 10 times to fund his habit of consuming heroin.

DISCUSSION

I. Probation Conditions

Defendant claims that the trial court erred in imposing the following probation conditions because, in violation of state law, they have no connection to the crime or any risk of future criminality, and also because they violate certain constitutional guaranties:

Not use or possess alcohol, narcotics, drugs or other controlled substances without the prescription of a physician[;] not traffic in [controlled substances] or associate with persons who traffic in or use controlled substances.

Not be present in any known gang gathering area. In its oral instructions to defendant, the trial court elaborated on this condition as follows: Not to be present in any known gang gathering area at the direction of a probation officer.

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

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.

Not possess, receive or transport any firearms, ammunition or any deadly or dangerous weapon.

The probation report stated that defendant associated with Norteo gang members, and that Sureo gang members were his enemies.

At the hearing setting probation conditions, defense counsel moved that no gang-related conditions be imposed. The parties noted at the hearing that when defendants jailers were considering where to house him he alerted them that he associates with people connected to the Norteo gang. But defense counsel argued that the case had nothing to do with gangs, defendant was not a gang member proper, and defendants criminal record did not reflect gang involvement. By imposing the conditions, the trial court implicitly denied defendants motion.

A. Forfeiture

The People contend that because defendant did not object to the weapons-related probation conditions on state law grounds or to any probation condition on constitutional grounds, he has forfeited the related claims on appeal. After the People filed their brief in this court, however, the Supreme Court reiterated that in most cases an appellate court may review a forfeited claimand [w]hether or not it should do so is entrusted to its discretion.  (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7; cf. id., p. 888, fn. 7, 3d par. [appellate courts lack discretion to review otherwise forfeited claims regarding the admission or exclusion of evidence].) Sheena K. held that if a facial constitutional challenge on overbreadth and vagueness grounds to a probation condition presents a pure question of law, easily remediable on appeal by modification of the condition (id. at p. 888), it is not forfeited despite failure to raise it in the superior court. Defendants claims here are all purely or predominantly legal, and they involve either a constitutional claim of overbreadth and vagueness or a claim of violation of a substantial right under state law, and thus the claims either require or militate in favor of review on the merits. (See id. at p. 887, fn. 7, 1st & 2d pars.) We therefore follow the Supreme Courts direction to review defendants constitutional claims on the merits and for the foregoing reasons exercise our discretion to review his weapons-related state law claim as well.

B. Standard of Review

In the ordinary case in which a trial court imposes a probation condition based on its determination of historical or situational facts regarding the defendant or the defendants crimes, a reviewing court is confined to determining whether the condition amounted to an abuse of discretion. (See People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.) In particular, the court may impose conditions to foster rehabilitation and to protect public safety. (Id. at p. 1120.) But the courts discretion is not unbounded. A court has no discretion to impose a condition that violates the United States or California Constitutions or another provision of law. The abuse of discretion standard . . . measures whether, given the established evidence, the act of the lower tribunal falls within the permissible range of options set by the legal criteria. The scope of discretion always resides in the particular law being applied, i.e., in the legal principles governing the subject of [the] action . . . . Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an abuse of discretion.  (Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 831, fn. omitted.)

C. Connection to Crime or Risk of Future Criminality

A trial courts exercise of discretion is further bounded by the rule that require[s] that probation conditions which regulate conduct not itself criminal be reasonably related to the crime of which the defendant was convicted or to future criminality.  (People v. Carbajal, supra, 10 Cal.4th at p. 1121.) As noted, defendant contends that the probation conditions violate this stricture. We disagree.

With regard to alcohol and drugs, defendant told the police that he had repeatedly stolen goods from Safeway stores to support his habit of consuming heroin. The trial court did not abuse its discretion in determining that if defendant reverted to using drugs future criminal conduct could result, and that directing defendant to avoid intoxicating substances and those who purvey or use them would lessen the chances of a relapse.

With regard to gangs, although defense counsel argued that defendant was not a gang member, the parties appeared not to disagree that he had some association with gangs. The trial court did not abuse its discretion in ordering defendant as a condition of probation to avoid gang areas, members, and various types of insignia, because under similar conditions (People v. Lopez (1998) 66 Cal.App.4th 615, 622) restrictions of this type have been held, and correctly so, to be  reasonably designed to prevent future criminal behavior.  (Id. at p. 624.) Defendant argues that because it is not evident he was participating in gangs or on the path to becoming a gang member, or that the present offense was gang-related, the court erred in imposing the condition. Those arguments, however, are directed to the trial courts discretion, and the court could reasonably conclude that defendants acknowledged ties to the Norteo gang, however tenuous, justified the condition, because the risk existed that the ties could strengthen. (See ibid.) We cannot set the conditions aside; to do so on the basis of defendants urgings on appeal about the nature of his gang connections would be to usurp the trial courts role.

With regard to weapons, defendant relies on In re Martinez (1978) 86 Cal.App.3d 577, 581, for the proposition that the no-weapons probation condition is redundant of another probationary requirement that he remain law-abiding and therefore is unnecessary.

As noted in People v. Bauer (1989) 211 Cal.App.3d 937, however, Martinez is limited to its facts, involving a crowd of about 50 people jeering and throwing beer bottles at [two] police officers who were impounding a car. The defendant pleaded guilty to battery on a police officer after being arrested for throwing a bottle of beer at a police car. [Citation.] On appeal, [Martinez] invalidated the warrantless search condition of probation because the unique facts of the case made the condition unreasonable: the defendant did not use a concealed weapon, he had never been convicted, and there was nothing to indicate he would use concealed weapons in the future. [Citation.] Given the entire circumstances of [the defendants] background and the crime, the search condition was unreasonable. (Id. at p. 943.) Martinez made clear that it was limiting the scope of its decision; it cautioned that it was not holding that in all cases where a defendant is convicted of an assault not involving the use of dangerous or deadly weapons, imposition of [a no-weapons] condition would per se be unreasonable. (In re Martinez, supra, 86 Cal.App.3d at p. 581.) It is likely that Martinez would have imposed the same limitation on the scope of its holding in the case of another crime, such as the aggravated petty theft defendant here committed, that did not involve the use of dangerous or deadly weapons. (See ibid. [referring to criminal defendants past behavior].)

In sum, the trial court could reasonably have concluded that defendant, given his history of heroin use, might at some point become desperate enough for the narcotic (whose addictive nature is beyond dispute) that he would use a weapon to facilitate stealing, burglarizing, or robbing to support his habit. There is no harm in being specific and telling defendant that he must, in addition to obeying the law generally, not involve himself with dangerous and deadly weapons. We find no abuse of discretion.

D. Constitutional Considerations

We turn to defendants claim that the probation conditions were unconstitutional. The conditions unconstitutionality, in his view, stems from their unduly vague and/or overbroad nature.

A probation condition is subject to the  void for vagueness  doctrine. (People v. Lopez, supra, 66 Cal.App.4th at p. 630.) The underlying concern of the void for vagueness doctrine is the core due process requirement of adequate notice. No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. [Citations.] (People ex rel. Gallov.Acuna (1997) 14 Cal.4th 1090, 1115.) The question here is whether the void for vagueness doctrine demands an explicit knowledge requirement in the challenged probation conditions. We conclude that it does. Given the rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights, the knowledge requirement in probation conditions should not be left to implication. (People v. Garcia (1993) 19 Cal.App.4th 97, 102; cf. People v. Rubalcava (2000) 23 Cal.4th 322, 327, 331-332 [statute that criminalizes traditionally lawful conduct and does not define the requisite culpable mental state is construed to contain the mens rea element of knowledge].)

We agree with defendant that the following two conditions are at least constitutionally dubious, and possibly constitutionally infirm, because they could punish defendant for unwitting conduct: Not be present in any known gang gathering area. Not associate with any individuals known to be gang members or on probation or parole. (We rely on the trial courts written order rather than its somewhat different oral pronouncement regarding gang-gathering areas, because it is likely that defendants probation officer will examine the written order when considering whether defendant is obeying the conditions.) These two conditions do not specify that defendant must know he is in a gang-gathering area or is associating with gang members, probationers, or parolees. Absent a requirement that defendant know he is disobeying the conditions, he is vulnerable to punishment for unwitting violations of them. (See People v. Lopez, supra, 66 Cal.App.4th at pp. 628-629; In re Justin S. (2001) 93 Cal.App.4th 811, 816.) The defect may be remedied by modifying the conditions to incorporate a more precisely stated knowledge requirement, and we will do this in our dispositional order. (See In re Justin S., supra, at p. 816.)

The other three conditions, as described, forbid defendant to possess, receive or transport any firearms, ammunition or any deadly or dangerous weapon, wear, use or display any [gang-related] item prohibited by the Probation Officer, or use or possess alcohol, narcotics, drugs or other controlled substances without the prescription of a physician [or] traffic in or associate with persons who traffic in or use controlled substances.

The associational component of the alcohol and drug-related probation condition is constitutionally dubious or infirm for the reason stated above: it could punish defendant for unwitting conduct. We will modify that condition in our dispositional order. Aside from that, these three conditions provide constitutionally adequate notice and are not vague, overbroad, or otherwise unconstitutional.

As regards the trial courts condition proscribing use, possession, or transport of dangerous or deadly weapons: the meaning of the phrase deadly and dangerous weapons is narrower and less restrictive than defendant assumes. There is a long-standing distinction between weapons that are inherently deadly or dangerous and those that are deadly or dangerous based only on the facts of the particular case:   There are, first, those instrumentalities which are weapons in the strict sense of the word, and, second, those instrumentalities which are not weapons in the strict sense of the word, but which may be used as such. The instrumentalities falling in the first class, such as guns, dirks and blackjacks, which are weapons in the strict sense of the word and are dangerous or deadly [to] others in the ordinary use for which they are designed, may be said as a matter of law to be dangerous or deadly weapons. This is true as the ordinary use for which they are designed establishes their character as such. The instrumentalities falling into the second class, such as ordinary . . . objects[that] are not weapons in the strict sense of the word and are not dangerous or deadly to others in the ordinary use for which they are designed, may not be said as a matter of law to be dangerous or deadly weapons. When it appears, however, that an instrumentality other than one falling within the first class is capable of being used in a dangerous or deadly manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, we believe that its character as a dangerous or deadly weapon may be thus established, at least for the purposes of that occasion.   [Citations.]  (People v.Henderson (1999) 76 Cal.App.4th 453, 467-468.)

Thus, under established case law the weapons condition at issue would prohibit defendant from possessing objects that are weapons in the strict sense of the word and objects whose circumstances of possession indicated he intended to use them as weapons. Absent these latter circumstances the weapons condition would not prohibit defendant from owning or possessing everyday items that could be misused as weapons. Accordingly, we reject defendants contention that the weapons-related probation condition is unconstitutionally vague, overbroad, or otherwise invalid.

Nor, except for the possible unwitting conduct problem described above, are any of the gang restriction conditions invalid. A court may impose probation conditions that infringe on constitutional rights if the conditions are specifically tailored to the crime or to preventing future criminality. (See In re Abdirahman S. (1997) 58 Cal.App.4th 963, 969; In re Laylah K. (1991) 229 Cal.App.3d 1496, 1502, disapproved on other grounds in In re Sade C. (1996) 13 Cal.4th 952, 984, fn. 13, & id. at p. 962, fn. 2; In re Michael D. (1989) 214 Cal.App.3d 1610, 1616.) The foregoing are juvenile cases, but we see no difference in terms of what is constitutionally permitted and proscribed. [P]robationary proscriptions against gang-related conduct are . . . proper when imposed upon adult offenders . . . . The path from gang associations to criminal gang activity is open to adults as well as to minors. (People v. Lopez, supra, 66 Cal.App.4th at p. 625.) Defendant did not admit he was a gang member, but did admit to some form of association with Norteo gang members. The gang conditions imposed here were adequately related to defendants future criminality for reasons stated elsewhere in this opinion.

As for the condition directing defendant not to use or possess without a doctors prescription intoxicating substances or associate with those who do, we discern that he challenges only the associational aspect of the condition. We agree with him that as written it is at least of dubious constitutionality, and will modify it to correct the defect.

II. Ineffective Assistance of Counsel

Defendant argues that if we hold that he forfeited the probation-condition claims he presented in part I and therefore decline to consider those claims on the merits, it can only mean that trial counsel was ineffective under the United States and California Constitutions for failing to adequately raise the matter at trial. A claim of ineffective assistance of counsel under both constitutional guaranties entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Waidla (2000) 22 Cal.4th 690, 718.)

As noted, we have addressed defendants claims on the merits. Ultimately, therefore, because defendant was not prejudiced by any deficient act or omission by counsel that may have occurred, he was not burdened by ineffective assistance of counsel.

DISPOSITION

The trial court is ordered to modify the probation conditions in the judgment as follows:

Replace Not be present in any known gang gathering area with Not be present in any place that defendant knows to be or is told by his probation officer is a gang-gathering area.

Replace Not associate with any individuals known to be gang members or on probation or parole with Not associate with any individuals whom defendant knows to be or is told by his probation officer are gang members or on probation or parole.

Replace Not use or possess alcohol, narcotics, drugs or other controlled substances without the prescription of a physician, not traffic in or associate with persons who traffic in or use controlled substances with Not use or possess alcohol, narcotics, drugs or other controlled substances without a physicians prescription, nor traffic in or associate with persons whom defendant knows to be or is told by his probation officer are trafficking in or using controlled substances.

With this modification, the judgment is affirmed.

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Duffy, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P. J.

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McAdams, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.