P. v. Salazar

Filed 8/30/07 P. v. Salazar CA6

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Carlos Humberto Salazar appeals following his guilty plea, asserting the conditions of his probation related to gang association and apparel are impermissibly vague and overbroad.

Statement of the Case[1]

Defendant was charged with carrying a loaded firearm in a vehicle (Pen. Code  12025, subd. (a)(1) - count 2),[2]possessing a concealed firearm in a vehicle ( 12025, subd. (a)(1) - count 3), and street terrorism ( 186.22, subd. (a) - count 4). With respect to count 2, the complaint also alleged defendant was an active participant in a street gang within the meaning of section 12031, subdivision (a)(2)(C), and that defendant committed the offense for the benefit of a street gang. With respect to count 3, the complaint alleged that defendant had been previously convicted of a felony within the meaning of section 12025, subdivision (b)(1), and during the commission of the offense defendant was an active participant in a criminal street gang within the meaning of section 12025, subdivision (b)(3), and that defendant committed the crime for the benefit of a street gang in violation of section 186.22, subdivision (b)(1). Defendant waived preliminary hearing and was held to answer to the charges.

The prosecutor reduced count 2 to a misdemeanor, and defendant pleaded no contest to that count. The trial court suspended imposition of sentence, and placed defendant on three years informal probation. Included in the conditions of probation was that defendant was required to [n]ot be present in any known gang gathering area as directed by the Probation Officer, not to remain in any vehicle either as a passenger or driver which is known or suspected to be stolen or contains any firearm or illegal weapon, not to associate with Edwin Reyes or Juan Aragon,[3] or any individuals known to be gang members or on probation or parole, and not to 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, bandana, or any article of clothing, hand sign or paraphernalia associated with membership or affiliation in a gang.

Defendant filed a notice of appeal and request for certificate of probable cause, and the trial court granted the request.

Discussion

Defendant asserts the probation conditions related to his gang association are unconstitutionally vague and overbroad.

While defendant did not object to the probation conditions when they were imposed in the trial court, we do not deem the issue waived on appeal. In In re Sheena K. (2007) 40 Cal.4th 875, 889, the California Supreme Court held in a juvenile case that a failure to object to a probation condition on the ground that it is unconstitutionally vague and overbroad is not waived on appeal. We apply the same rule to this case.

A probation condition is subject to the void for vagueness doctrine, and thus must be sufficiently precise for the probationer to know what is required of him. . . . (People v.Lopez (1998) 66 Cal.App.4th 615, 630 (Lopez).) The underlying concern of the 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.] . . . Thus, a law that is void for vagueness not only fails to provide adequate notice to those who must observe its strictures, but also impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. (Ibid., quoting People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115-1116 (Acuna).) Acuna involved the defendants attack on a preliminary decree obtained by the City of San Jos that enjoined them from associating with other gang members. At issue was the existence of a knowledge requirement in the injunction. There, the court acknowledged that the City would have to establish a defendants own knowledge of his associates gang membership to meet its burden of proving conduct in violation of the injunction. Far from being a classic instance of constitutional vagueness, however, we think the element of knowledge is fairly implied in the decree. To the extent that it might not be, we are confident that the trial court will, as the Court of Appeal did in People v. Garcia (1993) 19 Cal.App.4th97, 103 [(Garcia)], impose such a limiting construction . . . by inserting a knowledge requirement should an attempt be made to enforce that paragraph of the injunction. (Acuna, supra 14 Cal.4th at p. 1117, italics omitted.)

In Lopez, the Court of Appeal concluded that, unlike the injunction in Acuna, a probation condition that prohibited the defendant from becoming involved in gang activities, associating with gang members and wearing, possessing or displaying gang insignia was both overbroad and void for vagueness. (Lopez, supra, 66 Cal.App.4th at pp. 622, 628-629.) The court modified the condition to state that the defendant is not to be involved in or associate with any person known to defendant to be a gang member and that the word gang means a criminal street gang as defined in Penal Code section 186.22, subdivisions (e) and (f). (Id. at p. 638, italics added.)

Similarly, in Garcia, supra, 19 Cal.App.4th 97, the appellate court limited a probation condition that prohibited the defendant from associating with certain groups of persons (drug users and sellers and felons) because the condition was not sufficiently narrowly drawn and did not require that the defendant have knowledge of the status of these persons. The court modified the condition to prohibit knowing association with those persons. (Garcia, supra, 19 Cal.App.4th at pp. 102-103.)

Both Lopez and Garcia hold that probation conditions that implicate constitutional rights must be narrowly drawn and that the knowledge requirement generally should not be left to implication. (Garcia, supra, 19 Cal.App.4th at p. 102.)

Here, the conditions regarding gang association included an explicit knowledge requirement on defendants part. Specifically, the conditions stated that he [n]ot be present in any known gang gathering area as directed by the Probation Officer, not to remain in any vehicle either as a passenger or driver which is known or suspected to be stolen or contains any firearm or illegal weapon, and not to associate with Edwin Reyes or Juan Aragon,[4] or any individuals known to be gang members or on probation or parole. (Italics added.)

The condition related to gang clothing and paraphernalia, however, does not contain a specific knowledge requirement on defendants part. It states that defendant 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, bandana, or any article of clothing, hand sign or paraphernalia associated with membership or affiliation in a gang.

In the absence of an explicit knowledge requirement, the probation condition related to gang clothing and paraphernalia is not narrowly enough drawn to give defendant adequate notice of the items he may not possess. Nothing in Acuna prevents us from modifying a probation condition so as to give notice to the defendant and also minimize the dangers of arbitrary and discriminatory application of the law inherent in the delegation of basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis. (Lopez, supra, 66 Cal.App.4th at p. 630, quoting Acuna, supra, 14 Cal.4th at p. 1116.) Absent modification of the challenged probation condition to add an explicit knowledge requirement, defendant remains vulnerable to arrest and punishment for unknowing violations of this condition of her probation. (Cf., e.g., Lopez, 66 Cal.App.4th at p. 628 [probation condition overbroad where it prohibited defendant from associating with persons not known to him to be gang members]; In re Justin S. (2001) 93 Cal.App.4th 811, 816; Garcia,at p. 103 [probation condition overbroad where it prohibited defendant to refrain from associating with persons not known to him to be users and sellers of narcotics].)

Disposition

The probation order is modified to state that defendant: Not possess, wear, use or display any item prohibited by the Probation Officer and known to be associated with membership or affiliation in a gang, including but not limited to any insignia, emblem, button, badge, cap, hat, scarf, bandana, or any article of clothing, hand sign or paraphernalia. As modified, the judgment is affirmed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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[1] We omit the underlying facts leading to defendants arrest, because they are not relevant to the issue on appeal.

[2] All further statutory references are to the Penal Code.

[3] Edwin Reyes and Juan Aragon were codefendants in this case.

[4] Edwin Reyes and Juan Aragon were codefendants in this case.