P. v. Pantoja-Ramirez

 

 

 

 

 

 

 

Filed 8/7/13  P. v. Pantoja-Ramirez CA1/4

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

 

FIRST
APPELLATE DISTRICT

 

DIVISION
FOUR

 

 
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THE PEOPLE,             Plaintiff and Respondent, v. DANIEL PANTOJA-RAMIREZ,             Defendant and Appellant.

A135989         (Solano County       Super. Ct. No. FCR291587)

 

            Daniel
Pantoja-Ramirez appeals from a judgment upon a jury verdict finding him guilty
of permitting another to shoot a firearm
from a vehicle, and obstructing or delaying a peace officer (Pen. Code,
§§26100, subd. (b); 148, subd. (a)(1)). 
On appeal, defendant challenges the gang conditions of his
probation.  We modify the gang
conditions, and otherwise affirm the judgment.  


>I. 
FACTS

            On
March 11, 2012 at
approximately 9:30 p.m., Officer
Kevin Carella was on patrol on Mankas between Abernathy and Rancho
Solano Parkway in Fairfield.  He heard several gunshots and saw muzzle
flashes coming from defendant’s vehicle at Abernathy and Mankas.  Defendant’s car made a U-turn and then was
facing eastbound in Carella’s direction. 
It stopped for about 15 to 20 seconds; Carella heard five to six more
gunshots.  Defendant drove his car toward
Carella and passed Carella’s vehicle. 
Carella followed defendant’s car and radioed for assistance.  Once other police cars were behind Carella’s
car, Carella effected a traffic stop. 
Defendant, however, did not immediately stop but traveled approximately
400 to 500 feet, and slowed to a stop or almost a complete stop.  A passenger in the car got out, threw a black
bag over a residential fence, hopped the fence and took off running.  Carella stopped to pursue the passenger while
a backup unit pursued defendant. 

            Officer
Shackford activated his siren and pursued defendant’s car for about half a mile
before defendant pulled over.  When
Shackford approached the car, he saw a spent casing on the back passenger
floorboard and the handle of a baseball bat. 
In a search of the car, he found a Raiders’ beanie containing six live
bullets inside the center console and a wooden claw hammer under the driver’s
seat.  The police also found spent
casings in the area where Carella had observed that shots were fired.  The expended bullet casing found in
defendant’s car matched the casings found at the scene of the shooting.

            Defendant
testified that on the evening of March
11, 2012, he was driving his friend, Juan, to his house.  They decided to go to the Tower Market
first.  On the way, Juan pulled out a gun
and started shooting out of the car. 
Defendant did not know that Juan had a gun and became angry.  He decided to take Juan back to where he had
picked him up and made a U-turn.  Defendant
testified that he then saw that he was being pursued by the police and when he
slowed down, Juan jumped out of the car. 
Defendant did not know Juan’s last name.

>II. 
DISCUSSION

            Defendant
contends that the trial court abused its discretion in imposing gang terms as a
condition of probation.  He argues that
the evidence fails to show that he was currently a gang member or that the
crime was related to gang activity.

            The
Attorney General asserts that defendant forfeited his challenge to the gang
conditions because he failed to object in the trial court.href="#_ftn1" name="_ftnref1" title="">[1]  The failure to object to a condition of
probation below waives any error on appeal. 
(People v. Welch (1993) 5
Cal.4th 228, 234–235 (Welch); >People v. Gardineer (2000) 79
Cal.App.4th 148, 151–152.)  “A timely
objection allows the court to modify or delete an allegedly unreasonable
condition or to explain why it is necessary in the particular case.”  (Welch,
supra, 5 Cal.4th at p. 235.) 
Defendant argues that his defense counsel objected to the gang
conditions by arguing that defendant was not a gang member.  The record refutes this claim.

            When
read in context, defense counsel’s argument was not that defendant objected to
the gang conditions, but rather that he was an appropriate candidate for probation.  Indeed, defendant asked the court to follow
the probation officer’s recommendation of probation on conditions including the
gang terms.  Defense counsel argued that
defendant “acknowledges that he needs to make significant lifestyle changes,
[including] being free of alcohol and drugs and disengaging from these individuals that have criminal and gang
associations.”  While defendant
forfeited the claim by failing to object to the gang conditions when they were
imposed, we consider the issue in order to obviate any claim that trial counsel
was ineffective for failing to object.

            We
review the trial court’s imposition of conditions of probation for abuse of
discretion.  (People v. Olguin (2008) 45 Cal.4th 375, 379.)  “Generally, ‘[a] condition of probation will
not be held invalid unless it “(1) has no relationship to the crime of which
the offender was convicted, (2) relates to conduct which is not in itself
criminal, and (3) requires or forbids conduct which is not reasonably related
to future criminality . . . .’ 
[Citation.]”  (>Ibid., quoting People v. Lent (1975) 15 Cal.3d 481, 486.)

            Here,
there is substantial evidence in the record to support imposition of gang
conditions.  The probation officer’s
report indicates that defendant was an admitted Sureño gang member of the Calle
San Marco set as a juvenile.  In
addition, he suffered violations of probation for associating with known gang
members when he was a juvenile.  Further,
his defense counsel acknowledged that although he had no information that
defendant was currently a gang member, defendant had “associates” that were
gang members and had brothers who were affiliated with a gang.href="#_ftn2" name="_ftnref2" title="">[2]  More importantly, defendant acknowledged that
he needed to disengage from individuals that had gang associations.  

            The
gang conditions were also permissible as they were reasonably related to
preventing future criminality.  (>People v. Lent, supra, 15 Cal.3d at p. 486.) 
In People v. Lopez (1998) 66
Cal.App.4th 615, 625–626 (Lopez), the
court, in affirming imposition of gang terms on an adult first time offender
convicted of a crime that was not gang related, recognized that association
with gang members is the first step to involvement in gang activity.

            Defendant
argues that Lopez is distinguishable
because there the defendant admitted being a gang member.  (Lopez,
supra, 66 Cal.App.4th at p. 622.)
 Yet the Lopez court stressed that whether a defendant was a current gang
member was not “critical.”  (>Id. at p. 624.)  The defendant in Lopez, like defendant here, was in his early twenties with a
juvenile court history, though the present conviction was his first adult
felony.  Hence, like Lopez, even if the current offense was not in some manner gang
related, given defendant’s age, his past affiliation with a gang, and his
current gang associates, the trial court was warranted in concluding that gang
conditions were necessary as “an essential element of any probationary effort
at rehabilitation because it would insulate him from a source of temptation to
continue to pursue a criminal lifestyle.” 
(Id. at p. 626.) 

            Finally,
defendant contends that even if the gang conditions are reasonable, four of the
terms must be modified because they lack a knowledge requirement and are
therefore unconstitutionally overbroad and vague.  The Attorney General does not oppose the
proposed modifications. 

            In
Lopez, supra, 66 Cal.App.4th at pp.
627–629, the court held that a probation condition prohibiting the defendant
from wearing gang clothing or displaying gang insignia was unconstitutionally
overbroad because it did not provide that the clothing and insignia must be
known to the defendant to be gang related. 
The court modified the condition to add the element of knowledge.  (Id. at
p. 638.)  Recently, the court in >People v. Patel (2011) 196 Cal.App.4th
956, 960–961, modified a probation condition to include a knowledge
requirement, but noted that it would no longer entertain the issue since it was
a repetitive appellate issue which resulted in a drain on judicial resources.  (Id. at
p. 960.)  Instead, the >Patel court held that it would in the
future “construe every probation condition proscribing a probationer’s
presence, possession, association, or similar action to require the action be
undertaken knowingly.  It will no longer
be necessary to seek a modification of a probation order that fails to
expressly include such a scienter requirement.” 
(Id. at pp. 960–961.)  

            Although
we too recognize the problem of repeatedly entertaining the scienter issue in
probation condition orders, we shall adhere to the practice of modifying
probation conditions to add an express knowledge requirement.

>III. 
DISPOSITION

            The
following probation conditions are modified to read as follows:  “Defendant is prohibited from wearing any
gang associated clothing, emblems, or insignia known to him to be associated
with any gang.  Defendant is prohibited
from possessing any gang-related paraphernalia known by him to be related to
gangs, including, but not limited to gang graffiti, symbols, photographs,
members rosters, or other gang writings or publications.  Defendant is prohibited from acquiring any
tattoos, permanent or temporary, and/or any gang-related burns or marks known
to him to be gang related.  Defendant is
prohibited from being present at any court proceeding known to him to

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involve gang members to which he is
not a party or a subpoenaed witness.”  In
all other respects, the judgment is affirmed. 


 

 

 

                                                                                    _________________________

                                                                                    Rivera,
J.

 

 

We concur:

 

 

_________________________

Ruvolo, P.J.

 

 

_________________________

Humes, J.