Opinion
H036509
01-19-2012
THE PEOPLE, Plaintiff and Respondent, v. JUAN JOSE ARREOLA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS102551)
Defendant Juan Jose Arreola pleaded no contest to possessing brass knuckles and committing misdemeanor street terrorism. The trial court suspended imposition of sentence and placed defendant on probation with conditions, including a 180-day jail sentence. On appeal, defendant challenges six probation conditions as unconstitutionally vague and overbroad. We will modify certain conditions. We will then affirm the order for probation as modified.
LEGAL BACKGROUND
Under Penal Code section 1203.1, a court granting probation may impose "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer." (§ 1203.1, subd. (j).) "The primary goal of probation is to ensure '[t]he safety of the public . . . through the enforcement of court-ordered conditions of probation.' (Pen. Code, § 1202.7.)" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) "In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1." (Ibid.)
Further unspecified statutory references are to the Penal Code.
"The trial court's discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute." (Carbajal, supra, 10 Cal.4th at p. 1121.) The Supreme Court has "interpreted Penal Code section 1203.1 to require 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. Lent [(1975)] 15 Cal.3d 481, 486.)" (Ibid.) "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.]' (Lent, supra, 15 Cal.3d at p. 486.)" (People v. Olguin (2008) 45 Cal.4th 375, 379.) Thus, "even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality. (See Carbajal, supra, 10 Cal.4th at [p.] 1121.)" (Id. at p. 380.)
"As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or ' " 'exceeds the bounds of reason, all of the circumstances being considered.' " [Citations.]' (People v. Welch [(1993)] 5 Cal.4th [228,] 233.)" (Carbajal, supra, 10 Cal.4th at p. 1121.) "We review conditions of probation for abuse of discretion." (People v. Olguin, supra, 45 Cal.4th at p. 379.)
As to infringement of constitutional rights, "probation is a privilege and not a right, and . . . adult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights--as, for example, when they agree to warrantless search conditions." (People v. Olguin, supra, 45 Cal.4th at p. 384.) But the Supreme Court has recognized that "[a] probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).)
In addition, "[a] probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness. (People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325.)" (Sheena K., supra, 40 Cal.4th at p. 890.) Thus, a probation condition forbidding a minor from associating with " 'anyone disapproved of by probation' " was unconstitutionally vague where the probation condition did not inform the minor "in advance with whom she might not associate," but it could be rendered constitutional by modifying the condition "to impose an explicit knowledge requirement." (Id. at pp. 889, 891-892.)
While a defendant forfeits any claim that a probation condition is unreasonable if he fails to timely raise an objection in the trial court (People v. Welch, supra, 5 Cal.4th at pp. 234-237), the forfeiture rule does not apply to a facial challenge to a patently unconstitutional probation condition that may be corrected on appeal without reference to the particular sentencing record developed in the trial court and without remanding to the trial court for further findings. (Sheena K., supra, 40 Cal.4th at pp. 885-889.) Other constitutional challenges cannot be raised on appeal in the absence of objection in the trial court. (Id. at p. 889.)
FACTUAL BACKGROUND
Defendant admitted to police officers on patrol that he was on probation. He then consented to a compliance search. The officers found brass knuckles. They also found pictures on defendant's cell phone displaying Norteno gang images. One image showed defendant making a Norteno hand sign. Defendant admitted to a jail officer that he had been a lifelong Norteno member.
DISCUSSION
The trial court imposed the following probation conditions.
Condition No. 1: "[N]ot traffic in, or associate with persons you know, or have reason to suspect, use or traffic in narcotics or other controlled substances." Related to this was the following condition: "Not associate with any individuals you know or have reason to know to be gang members, drug users, or on any form of probation or parole supervision."
Defendant argues that the probation conditions forbidding him from associating with gang members is unconstitutionally vague and overbroad for lack of a "gang" definition. He urges that the condition should incorporate the statutory definition of a criminal street gang.
People v. Lopez (1998) 66 Cal.App.4th 615 (Lopez)determined that the word "gang" on its face is "uncertain in meaning" (id. at p. 631) and that probation conditions should be modified so as to expressly incorporate section 186.22, subdivisions (e) and (f). (Lopez, supra, at pp. 634, 638.) In People v. Leon (2010) 181 Cal.App.4th 943, this court modified "gang" to "criminal street gang" without an explicit reference to the statute, but it does not appear that the defendant specifically challenged the definition of the word on appeal. We agree that it is appropriate to order modification of all the gang-related probation conditions to incorporate into them the definitions contained in section 186.22, subdivisions (e) and (f). (See Lopez, supra, at p. 634.)
Defendant next contends that the "reason to know or suspect" phrase renders the probation condition unconstitutionally vague and overbroad. He urges that the condition should be modified by striking the phrases from the conditions. He argues that the concept of "reason to know or suspect" has no criteria and is not the equivalent of explicit knowledge required by Sheena K. We agree in part with defendant.
Defendant repeats this contention in his challenges to other probation conditions. And he repeats others. We address the common points once.
In the context of penal statutes, the California Supreme Court has determined that culpability based on the "reasonably should know" constructive knowledge standard is not vague. For example, in the case of In re Jorge M. (2000) 23 Cal.4th 866, the court determined that proving a violation of the Assault Weapons Control Act (AWCA) (§§ 12275-12290) required showing "that a defendant charged with possessing an unregistered assault weapon knew or reasonably should have known the characteristics of the weapon bringing it within the registration requirements of the AWCA." (In re Jorge M., supra, at pp. 869-870.) The court rejected a suggestion that such an interpretation was unconstitutional. The court explained, "That a criminal statute contains one or more ambiguities requiring interpretation does not make the statute unconstitutionally vague on its face [citation], nor does it imply the statute cannot, in general, be fairly applied without proving knowledge of its terms." (Id. at p. 886; see also People v. Rodriguez (1986) 42 Cal.3d 730, 779-782 [holding constitutional the special circumstance of peace officer murder under section 190.2, subdivision (a)(7), which applies to a defendant who has intentionally killed another who the defendant "reasonably should have known" was a peace officer engaged in the performance of official duty]; People v. Mathews (1994) 25 Cal.App.4th 89, 97-98 [holding constitutional former section 417, subdivision (b), which prohibited a defendant from exhibiting a firearm in the presence of another when the defendant "reasonably should know" the person is a peace officer engaged in the performance of official duty]; People v. Turner (2007) 155 Cal.App.4th 1432, 1436 [ordering probation condition modified to state that the defendant is precluded from associating with people he " 'knows or reasonably should know' " is under 18 years old].)
We are not convinced that the phrase "have reason to know" sets forth a significantly different or, relevant to the vagueness challenge here, a less precise standard than the phrase "reasonably should know." Regarding the latter phrase, the word "reasonably" means "in a reasonable manner," and "reasonable" means "not conflicting with reason" and "being or remaining within the bounds of reason." (Webster's 3d New Internat. Dict. (1993) p. 1892.) The word "should" has the function of "express[ing] . . . obligation." (Id. at p. 2104.) In the probation condition at issue, the phrase "have reason to know" would require defendant to stay away from those individuals who he has a rational ground to know are of a certain status. We do not believe that the phrase would create significantly different standards in this context. (See People v. Morris (2010) 185 Cal.App.4th 1147, 1155 [using "reason to know" phrase in reference to a sentence enhancement under section 667.9, which applies to a defendant who commits an enumerated offense against a victim who has a specified disability or condition that "is known or reasonably should be known" to the defendant].)
In Sheena K., the court concluded that a probation condition prohibiting the defendant from associating with " 'anyone disapproved of by probation' " was unconstitutionally vague. (Sheena K., supra, 40 Cal.4th at p. 889.) It determined that "modification to impose an explicit knowledge requirement is necessary to render the condition constitutional." (Id. at p. 892.) The court reasoned that, without "an express requirement of knowledge," "the probation condition did not notify defendant in advance with whom she might not associate through any reference to persons whom defendant knew to be disapproved of by her probation officer." (Id. at pp. 891-892.) The court suggested that "form probation orders be modified so that such a restriction explicitly directs the probationer not to associate with anyone 'known to be disapproved of' by a probation officer or other person having authority over the minor." (Id. at p. 892.)
Although Sheena K. requires an "express" or "explicit" knowledge requirement (Sheena K., supra, 40 Cal.4th at pp. 891, 892), we are not convinced that Sheena K. stands for the proposition that actual knowledge is required regarding the conduct that is prohibited. In Sheena K., the court expressed approval of the appellate court's insertion in the probation condition of "the qualification that defendant have knowledge of who was disapproved of by her probation officer." (Id. at p. 892.) It did not address whether a "reason to know" standard might also satisfy constitutional concerns. "Cases are not authority for propositions they do not consider." (People v. Martinez (2000) 22 Cal.4th 106, 118.) Here, the probation conditions at issue contain an explicit knowledge requirement. Defendant is prohibited from associating with anyone who he "know[s]" or has "reason to know" is of a certain status.
Accordingly, we determine that the probation condition prohibiting defendant from associating with individuals who he knows or has reason to know are drug traffickers, etc., is not unconstitutionally vague.
In People v. Gabriel (2010) 189 Cal.App.4th 1070, this court considered a constitutional challenge to a probation condition enjoining a probationer to " '[n]ot associate with any individuals you know or suspect to be gang members, drugs users, or on any form of probation or parole supervision.' " (Id. at p. 1073.) We reasoned as follows: "To 'suspect' is 'to imagine (one) to be guilty or culpable on slight evidence or without proof' or 'to imagine to exist or be true, likely, or probable.' (Merriam-Webster's Collegiate Dict. (10th ed. 1999) p. 1187 (Webster's).) To 'imagine' is 'to form a notion of without sufficient basis.' (Webster's, at p. 578.) Given this lack of specificity, the word 'suspect' fails to provide defendant with adequate notice of what is expected of him when he lacks actual knowledge that a person is a gang member, drug user, or on probation or parole. Moreover, inclusion of this word renders the condition insufficiently precise for a court to determine whether a violation has occurred." (Ibid.) Accordingly, the challenged condition in this case with the words "have reason to suspect" must be modified to replace the words with "have reason to know."
We will so modify in this case.
Condition No. 2: "Not be present in any area you know, have reason to know or are told by the Probation Officer to be a gang-gathering area."
Defendant contends that the condition is vague because "area" is undefined and overbroad because it impinges on his right to travel and be in areas where he lawfully might be.
In support of these claims, defendant cites this court's opinion in the case of In re H.C. (2009) 175 Cal.App.4th 1067 (H.C.).
In H.C., we discussed the propriety of a condition that a probationer " 'not frequent any areas of gang related activity and not participate in any gang activity.' " (H.C., supra, 175 Cal.App.4th at p. 1072.) We found the word " 'frequent' " to be "obscure" and the phrase " 'areas of gang-related activity' " to be overbroad in that it "might be, in some instances, an entire district or town." (Ibid.)We gleaned that the point of the probation condition was to prohibit the minor from visiting areas known to him to be a place of gang-related activity. Although we considered it "preferable" for such a condition "to name the actual geographic area that would be prohibited to the minor and then to except from that certain kinds of travel, that is, to school or to work," we concluded that "[a]t the very least the condition . . . should be revised to say that the minor not visit any area known to him to be a place of gang-related activity." (Ibid.)
Here, the challenged condition is consistent with our conclusion in H.C. It states that defendant should not be present in a known gang-gathering area. Unlike defendant, we do not find the concept "gang-gathering area" to be vague. It is well known that modern criminal street gangs frequent particular geographical areas to carry out their activities. "No one immersed in the gang culture is unaware of these realities, and we see no reason the courts should turn a blind eye to them." (People v. Montes (1999) 74 Cal.App.4th 1050, 1056.) Although we do not find the concept "not be present" to be vague or obscure, we nevertheless find the concept to be constitutionally problematic. Applied literally, the prohibition against being "present" in gang areas would render defendant subject to arrest for a probation violation for merely passing through gang-gathering areas while traveling by bus or in a friend's car on his way to school, work, home, or the court. Such an application, however, implicates defendant's constitutional right to travel and is not narrowly tailored to prevent defendant's involvement in gang-related activity and achieve the rehabilitative and reformative purposes of probation. (See In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373 [observing that a restriction on travel to gang territory might be proper for a minor living outside the gang's territory but overbroad for a minor who lives, works, or attends school within that area]; In re White, supra, 97 Cal.App.3d at pp. 149-151 [probation condition forbidding travel within designated areas having significant prostitution activities violated the defendant's constitutional right to travel].) Accordingly, we shall modify the condition to prohibit defendant from visiting or remaining in any area he knows, reasonably should know, or is told by his probation officer to be a gang-gathering area.
Although "[t]he word 'travel' is not found in the text of the [federal] Constitution," "the 'constitutional right to travel from one State to another' is firmly embedded in [the United States Supreme Court] jurisprudence." (Saenz v. Roe (1999) 526 U.S. 489, 498.) "The right to travel has been described as a privilege of national citizenship, and as an aspect of liberty that is protected by the Due Process Clauses of the Fifth and Fourteenth Amendments." (Jones v. Helms (1981) 452 U.S. 412, 418-419, fn. omitted; see Attorney General of N.Y. v. Soto-Lopez (1986) 476 U .S. 898, 902 (plur. opn. of Brennan, J.) ["textual source of the constitutional right to travel, or, more precisely, the right of free interstate migration" "has been variously assigned to the Privileges and Immunities Clause of Art. IV," "to the Commerce Clause," "to the Privileges and Immunities Clause of the Fourteenth Amendment," and "has also been inferred from the federal structure of government adopted by our Constitution"].) "The 'right to travel' discussed in [the United States Supreme Court] cases embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State." (Saenz v. Roe, supra, at p. 500.) In addition, "[t]he right of intrastate travel has been recognized as a basic human right protected by article I, sections 7 and 24 of the California Constitution." (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1100; see In re White (1979) 97 Cal.App.3d 141, 148 ["the right to intrastate travel (which includes intramunicipal travel) is a basic human right protected by the United States and California Constitutions as a whole."].)
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Condition No. 3: "Not remain in any vehicle either as a passenger or driver which is known or have reason to know to be stolen or contains any firearm or illegal weapon."
According to defendant, the condition is vague because phrase "not remain" "does not guarantee knowledge of the banned conduct before [he] can be violated for remaining in its presence." This point rests on the premise that the words "have reason to know" do not comport with the scienter requirement. Since we have rejected defendant's premise elsewhere, the contention fails.
Condition No. 4: "Not possess, wear, use or display any item you know or have reason to know to be associated with membership or affiliation in a gang, including, but not limited to, any insignia, emblem, button, badge, cap, hat, scarf, bandanna, or any article of clothing, hand sign, or paraphernalia to include the color red, as well as any such item prohibited by the Probation Officer."
Defendant contends that the condition is overbroad because it impinges on his freedom of association in that he "is a farm worker [and the] condition bars him from wearing or using the huelga bird strike button or flag in support of the United Farm Workers Union."
That may be so; however, we remind defendant that "[i]nherent in the very nature of probation is that probationers 'do not enjoy "the absolute liberty to which every citizen is entitled." ' [Citations.] Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens." (United States v. Knights (2001) 534 U.S. 112, 119.) Here, there apparently was a "factual dispute . . . whether [defendant] was wearing a [gang] button or a Huelga bird." But, in the event defendant finds it necessary to engage in political activity in support of the United Farm Workers Union and wear a symbol of that support which might have an ambiguous meaning, it is a simple matter for defendant to ask the probation officer for permission.
In People v. Leon, supra, 181 Cal.App.4th 943, we modified a condition similar to the one defendant challenges to read that the probationer was not to possess, display or wear gang paraphernalia that he knew or the probation officer informed him was gang-related. (Id. at p. 951.) In our view, the challenged condition comports with the Leon modification.
Condition No. 5: "Do not obtain any new tattooing upon your person which you have reason to know is gang related while on probation supervision."
Defendant contends that the condition is overbroad "by banning tattooing, a purely expressive activity fully protected by the First Amendment, without restrictions that can be justified as required by the compelling state interest in reformation and rehabilitation." We disagree.
In the case of In re Antonio C. (2000) 83 Cal.App.4th 1029, "the Fifth District rejected a First Amendment challenge to a condition prohibiting the minor from acquiring any new tattoos. 'Assuming, without deciding, that tattoos and related skin markings constitute speech under the First Amendment [citation], the probation condition does not unduly burden [the minor's] free speech rights. The United States Supreme Court has long held that while nonverbal expressive activity cannot be banned because of the ideas it expresses, it can be banned because of the action it entails. . . . Here, the probation condition, which is content neutral, temporarily prohibits [the minor] from self-expression through permanent skin disfigurement. Its focus is the manner in which the message is conveyed, not the message itself. As such, it constitutes a reasonable manner restriction on [the minor's] free speech rights.' " (In re Victor L. (2010) 182 Cal.App.4th 902, 927 (Victor L.).)
In Victor L., Division 2 of the First District Court of Appeal agreed with the constitutional analysis of Antonio C., and concluded that "the prohibition on acquiring tattoos while on juvenile probation is a proper condition for gang members or those at risk of becoming gang members, regardless of their age, so long as they remain under the juvenile court's jurisdiction." (Victor L., supra, 182 Cal.App.4th at p. 928.) "Just because it is lawful for an 18 year old to get a tattoo does not mean it is wise." (Id. at p. 929.) As the language of the probation condition at issue in Victor L. "was adopted by the court below practically verbatim" from that ordered by the appellate court in Antonio C., (Victor L., supra, at p. 928), the court in Victor L. stated that it was "reluctant to hold unconstitutional language which was specifically prescribed by another Court of Appeal." (Ibid.)
Although defendant is not a minor, we find that the prohibition on acquiring tattoos while on probation is a proper condition for adult gang members or those at risk of becoming gang members so long as they remain on probation under the superior court's jurisdiction, and we are just as reluctant as the court in Victor L. was to hold unconstitutional language which was specifically prescribed by another Court of Appeal. (Victor L., supra, 182 Cal.App.4th at p. 928.)
Condition No. 6: "You shall not be present at any criminal court proceeding or loiter in or around any criminal courthouse building, to include juvenile hall, unless you are scheduled for a court hearing, have the express permission of your Probation Officer, or have other lawful business with the court or county administration."
Defendant contends that the condition impinges on his "rights under the First Amendment to have access to public courthouses, and under the California Constitution [citation] as a victim, to be present at all proceeding[s] at which a defendant and prosecutor are entitled to be present." Defendant urges that the condition be stricken. The People suggest that we modify it.
In People v. Leon, supra, 181 Cal.App.4th at pages 951 through 954, we considered a challenge to a similar condition. The challenged condition stated, " 'You shall not appear at any court proceeding unless you're a party, you're a defendant in a criminal action, subpoenaed as a witness, or with permission of probation.' " (Id. at p. 952.) To preserve the First Amendment right to attend court proceedings, Leon modified the condition to provide: " 'You shall not be present at any court proceeding where you know or the probation officer informs you that a member of a criminal street gang is present or that the proceeding concerns a member of a criminal street gang unless you are a party, you are a defendant in a criminal action, you are subpoenaed as a witness, or you have the prior permission of your probation officer.' " (Id. at p. 954.) We will issue the same modification here.
DISPOSITION
The order for probation is modified as follows.
"For purposes of defendant's probation conditions, the word 'gang' means a 'criminal street gang' as defined in Penal Code section 186.22, subdivisions (e) and (f)."
The probation condition reading "not traffic in, or associate with persons you know, or have reason to suspect, use or traffic in narcotics or other controlled substances" is modified to read "not traffic in, or associate with persons you know, or have reason to know, use or traffic in narcotics or other controlled substances."
The probation condition reading "Not be present in any area you know, have reason to know or are told by the Probation Officer to be a gang-gathering area" is modified to read "Not visit or remain in any area that you know, have reason to know, or are told by the probation officer to be a gang-gathering area."
The probation condition reading "You shall not be present at any criminal court proceeding or loiter in or around any criminal courthouse building, to include juvenile hall, unless you are scheduled for a court hearing, have the express permission of your Probation Officer, or have other lawful business with the court or county administration" is modified to read "You shall not be present at any court proceeding where you know or the probation officer informs you that a member of a criminal street gang is present or that the proceeding concerns a member of a criminal street gang unless you are a party, you are a defendant in a criminal action, you are subpoenaed as a witness, or you have the prior permission of your probation officer."
As so modified, the order for probation is affirmed.
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Premo, Acting P.J.
WE CONCUR:
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Elia, J.
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Bamattre-Manoukian, J.