P. v. McClellan

Filed 8/24/06 P. v. McClellan CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed as modified.

Edna McClellan was charged with burglary (Pen. Code,^[1] §459, count one) and petty theft of merchandise with a prior theft (§§ 484, 490.5, 666, count two). McClellan pled guilty to count one in exchange for the dismissal of count two. McClellan was sentenced to 270 days in local custody and three years' probation. On appeal, she contends the trial court erred by (1) imposing probation gang conditions and (2) imposing a vague gang condition. We modify the judgment to the extent the gang probation condition is vague. In all other respects, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 29, 2005, loss prevention officers at an electronics retail store observed appellant use a razor blade to cut three items from their packages and place them in her purse. Appellant left the store without attempting to pay for the items and was detained by the officers outside the store. The three items recovered were valued at $209.97. Appellant admitted she had entered the store with the intent to steal.

Appellant was charged with one count of burglary and one count of petty theft of merchandise with a prior theft conviction. (§§ 459, 484, 490.5, 666) She pled guilty to the commercial burglary. In exchange, it was agreed the balance of the complaint would be dismissed, the prosecution would voice no opposition to local custody, and that any time served would be concurrent to custody for a prior probation violation.

At sentencing on December 15, 2005, the trial court placed appellant on three years' probation. She was also to serve 270 days in local custody, with credit given for time already served. The custody was ordered concurrent to custody for a prior probation violation. The order also stipulated that appellant could be released after 120 days of custody to an authorized representative of a residential rehabilitation program or public defender. The court also imposed restitution and various probation conditions. Section 10 of the order granting probation (§ 1203) is a list of gang conditions. Conditions 10 (b), (e), (f), (g), (j) and (k) were ordered in appellant's probation.^[2] Appellant's counsel objected to the gang conditions as overbroad and lacking in nexus to the burglary. Appellant's counsel did not make a specific objection in order to preserve the issue of constitutionality of the conditions under the First Amendment.

DISCUSSION

A. Waiver

The Attorney General contends defense counsel waived the right to appeal issues related to the probation conditions by failing to make a specific objection to the trial court. (People v. Welch (1993) 5 Cal.4th 228, 235.) In contrast, appellant argues that defense counsel's objections to the probation conditions on overbreadth and vagueness grounds sufficiently preserved her right to appeal. According to appellant, the issues she raises with regard to the probation conditions imposed are pure questions of law because she is asserting the conditions infringe upon her constitutional freedoms of speech and

association. (Ibid.) The issue of whether the waiver rule applies to challenges of vagueness and overbreadth is presently before the California Supreme Court in In re Sheena K. (2004) 116 Cal.App.4th 436, review granted June 9, 2004, S123980. Because we concur with the trial court on the merits, "we assume, without deciding, that the contention has not been waived." (In re Byron B. (2004) 119 Cal.App.4th 1013, 1015; see also People v. Hard (2003) 112 Cal.App.4th 272, 280.)

B. Probation Gang Conditions

Trial courts have broad discretion in determining the conditions of probation. (People v. Peck (1996) 52 Cal.App.4th 352, 362.) This broad discretion allows the courts to impose conditions of probation that will foster rehabilitation and reformation to the defendant, protect the public and the victim, and ensure justice is done. (§1203.1, subd. (j); Brown v. Superior Court (2002) 101 Cal.App.4th 313, 319.)

On appeal, the imposition of a condition of probation is reviewed for an abuse of discretion and "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 . . . .' " (People v. Lent (1975) 15 Cal.3d 481, 486.) In other words, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to future criminality. (People v. Wardlow (1991) 227 Cal.App.3d 360, 366.) The trial court violates this standard if, after considering all the circumstances, its determination is found to be arbitrary and capricious or exceeds the bounds of reason. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)

Appellant argues the imposition of the gang probation conditions was improper due to a lack of nexus between her crime and any gang or future criminality. Specifically, she contends the condition forbidding association with gang members infringes upon her constitutional right of association guaranteed to her under the First Amendment of the United States Constitution. We disagree.

It is established that probation conditions restricting association with known gang members are constitutional when specifically tailored to achieve rehabilitation of the probationer. (People v. Lopez (1998) 66 Cal.App.4th 615, 628.) Appellant insists the conditions in her case were improper because they were not specifically tailored. Her probation report does not say she is a known gang member or was motivated to commit the burglary due to any gang affiliation. However, evidence of gang membership is not a mandatory prerequisite to the imposition of gang related conditions. (In re Layla K. (1991) 229 Cal.App.3d 1496, 1502, disapproved on other grounds.) The current crime does not have to be gang related for gang conditions to be valid or proper. (People v. Lopez, supra, 66 Cal.App.4th at p. 626.)

Appellant's plea agreement included a Harvey waiver, thus allowing the sentencing judge to consider her prior criminal history and the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations or case. (People v. Harvey (1979) 25 Cal.3d 754.) In the last six years, appellant's probation report includes charges, filed and unfiled, of drug abuse, a prior burglary, association with known members of the Market Street Gang, possession of a bulletproof vest and gang inscriptions, a probation violation, and several incidents of group violence, one of which police believed was gang related and orchestrated by appellant.

Even without evidence that appellant is an actual gang member or that the electronics retail store burglary was gang related, it was reasonable to conclude her chances of future success would be greatly enhanced if she were barred from association with gang members. Association with gang members is the first step in gang activity, gang conditions are therefore reasonably designed to prevent future criminal behavior. (People v. Lopez, supra, 66 Cal.App.4th at pp. 624-625.)

In further support of her objection, appellant argues the gang conditions will not foster rehabilitation because she is 43 years old, not a young adult who is being led down the path of crime. We find appellant's age of no consequence. Regardless of her age, the gang conditions were an essential element of the probationary effort in rehabilitation because, if followed, they will insulate appellant from a source of temptation to continue her criminal lifestyle. (People v. Lopez, supra, 66 Cal.App.4th at p. 626.)

In sum, the sentencing judge has broad discretion when imposing probationary conditions. We are satisfied the inclusion of the gang related probationary conditions in appellant's case was not arbitrary or improper. Instead, under the circumstances, it promoted section 1203.1's goals of rehabilitation and public safety by forbidding conduct reasonably related to future criminality. (People v. Lent, supra, 15 Cal.3d at p. 486.)^[3]

B. Vagueness of Gang Condition 10(j)

Probation conditions are subject to the "void for vagueness doctrine." (People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325.) The underlying concern is the constitutional due process requirement of adequate notice. (People v. Lopez, supra, 66 Cal.App.4th at p. 630.) Therefore, a probation condition "must be sufficiently precise for the probationer to know what is required of him [or her], and for the court to determine whether the condition has been violated." (People v. Reinertson, supra, 178 Cal.App.3d at pp. 324-325.)

Appellant argues that probation condition 10 (j), forbidding appellant from wearing, displaying or possessing gang attire or paraphernalia, is unconstitutionally vague because it is not limited to items that appellant knows have gang significance. Absent a knowledge requirement, the conditions render appellant vulnerable to unintentionally violating probation. Conditions which compel a waiver of a defendant's constitutional rights must be narrowly drawn. (People v. Garcia (1993) 19 Cal.App.4th 97, 102-103.) On appeal, a probation condition deemed vague can be revised to include a knowing requirement. (Ibid.)

We conclude condition 10 (j) is unconstitutionally vague. However, we do not agree with appellant that the condition must therefore be stricken. Modifying the probation condition to expressly reflect the knowledge requirement cures the vagueness concern.

DISPOSITION

Condition 10 (j) is modified to read as follows: "Not wear, display, use, or possess any insignias, emblems, badges, buttons, caps, hats, jackets, shoes, flags, scarves, bandanas, shirts, or other articles of clothing defendant knows or has reason to know is associated with membership or affiliation in any gang." The trial court is directed to prepare an amended commitment order and to forward a certified copy to the appropriate authorities. In all other respects, the judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

NARES, J.

O'ROURKE, J.

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

^[2] The ordered sections of the gang probation conditions from section1203 read as follows:

"10.b. Not associate with any known gang member or persons who are associated with the Market Street gang.[¶] . . . [¶]

"10.e. Not own, transport, sell, possess any weapon, firearm, replica, ammunition, or any instrument used as a weapon.

"10.f. Not associate with any persons who have firearms or weapons in their possession.

"10.g. Not participate in activities/frequent places where firearms or weapons are used illegally or legally (hunting/target shooting).[¶] . . . [¶]

"10.j. Not wear, display, use, or possess any insignias, emblems, badges, buttons, caps, hats, jackets, shoes, flags, scarves, bandanas, shirts, or other articles of clothing which are evidence of affiliation with or membership in the ____ gang.

10.k. Not display any gang signs or gestures."

^[3] This court acknowledges the practical difficulties imposed on appellant due to her siblings' involvement with the Market Street Gang. While most individuals would consider loss of contact with their family an undue hardship, appellant's own future success is dependent upon her commitment to follow the court imposed conditions of her probation.