Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM029417
NICHOLSON, J.
As part of a bargain, defendant Peter James Bohnhoff pled no contest to two counts of forgery and agreed that although a third count would be dismissed, the facts of that count could be considered for purposes of sentencing. (Pen. Code, § 470, subd. (d).) The factual basis for the plea shows that on June 18, 2008, defendant and another person used fake driver’s licenses to cash a check for $1,500 at a casino, tried but failed to cash a second check at that casino for $4,000, and were arrested at another casino when they tried to cash a $3,000 check. The trial court granted defendant probation, and he timely appealed.
On appeal, defendant raises several challenges to various anti-gang conditions of his probation. We strike one probation condition, modify another, and otherwise affirm.
DISCUSSION
I
Gang Probation Conditions
Gang probation conditions, such as conditions that forbid gang members from associating with other known gang members, discourage criminality and therefore are generally lawful whether or not the current offense is gang related, if there is a showing that a defendant is involved with gangs. (People v. Lopez (1998) 66 Cal.App.4th 615, 623-626; see In re Vincent G. (2008) 162 Cal.App.4th 238, 247[minor placed on probation for marijuana offense; “Although condition 6 has no relationship to the marijuana offense that occurred in a school classroom, it is reasonably related to future gang-related criminality”].)
Defendant concedes this general proposition, but contends there was no showing that he is a gang member, as opposed to a motorcycle enthusiast, and therefore none of the gang probation conditions are authorized in this case.
The probation report states: “When asked about his involvement in the Hell Bent motorcycle gang, the defendant admitted he was an active participant, but had recently dropped out of the gang.” The report also states: “[I]t is reported by Sacramento Police Department that the defendant is an active member of an outlaw motorcycle gang (Hell Bent), which is known to be malevolent towards law enforcement. This poses the question as to whether or not the defendant will be able to or is willing to follow the directions of the Court and be supervised by law enforcement.” The report also states: “As per the Butte County Jail Gang Unit, the defendant is a documented gang member. During the Classification interview, the defendant admitted he was an active member of the Hell Bent motorcycle gang out of Sacramento, California.”
The probation report recommended a middle term state prison sentence, instead of probation.
A supplemental probation report set forth proposed probation terms. Proposed condition 41 partly prohibits defendant from membership in a gang or associations with “any person known by the defendant to be associated with, or a member of, any gang,” and “gang” was defined as a criminal street gang within the meaning of Penal Code section 186.22. Proposed condition 26 required defendant to comply with Penal Code section 186.30, which requires registration with the police as a member of a criminal street gang.
The trial court found this was an unusual case despite defendant’s two prior felony convictions, because of the length of time since defendant’s last felony conviction (in 1991), the fact no violence was used, and the fact defendant had never been to prison. The trial court suspended imposition of sentence and granted probation. As for the gang conditions, the trial court stated “it looked from the probation report like the defendant may still be an active member of that motorcycle gang, based upon conversations he was having with others in the presence of -- I can’t remember if it’s the probation officer or a police officer.” The trial court imposed the gang conditions as recommended.
We are puzzled by the trial court’s decision.
Defendant contends “Hell Bent is not a motorcycle gang but rather a motorcycle club.” Although the probation reports did not explicitly state that Hell Bent was a criminal street gang as defined by the Penal Code, the information it provided about Hell Bent and defendant’s relationship with Hell Bent, and the fact defendant was a “documented” gang member, coupled with the recommendation that defendant be subject to probation conditions tailored for members of criminal street gangs, indicated that Hell Bent was a criminal street gang and not a benign “club” of motorcyclists.
No evidence to the contrary was presented to the trial court. At sentencing, defense counsel made a narrow objection: “I don’t think there is any indication in this case that this conduct was attributed to or related to gang involvement. The fact that [defendant] previously belonged to a motorcycle group, I don’t think is sufficient.” Thus, the objection was that the current offenses were not gang related, and that defendant was no longer involved with the “motorcycle group[.]” There was no claim that that “group” did not qualify as a criminal street gang as suggested by the probation report, and, as stated, the defense produced no evidence to contradict the probation report.
Therefore, whether Hell Bent was in fact a criminal street gang within the meaning of the Penal Code was not challenged in the trial court. A fact-based challenge to probation conditions cannot be raised for the first time on appeal. (See In re Vincent G., supra, 162 Cal.App.4th at p. 246 [minor forfeited “fact-based” challenge to a particular gang condition].) Thus, the contention that the probation report merely suggested, but did not articulate, the nature of Hell Bent, comes too late.
II
Registration as a Gang Member
Condition 26 of the probation order requires defendant to register as a gang member. Defendant contends that the requirement that he register as a gang member must be stricken, because his current offenses are not gang related.
The registration statute requires that a current offense be gang related. (Pen. Code, § 186.30, subd. (b)(3); People v. Martinez (2004) 116 Cal.App.4th 753, 758-762 [crime is not gang related within meaning of this registration statute “based solely upon the defendant’s criminal history and gang affiliations”]; In re Eduardo C. (2001) 90 Cal.App.4th 937, 943.) There is no evidence these crimes were gang related. The registration condition is stricken.
Defendant also asserts the registration condition restricts his right to travel, but because we strike it on statutory grounds, we do not reach this claim.
III
Courthouse Restrictions
In light of a recent decision, People v. Perez (2009) 176 Cal.App.4th 380 (Perez), we solicited supplemental briefing to determine the propriety of the portion of probation condition 41 that states defendant: “SHALL NOT be in a courthouse or on court property unless under lawful subpoena or as a party to a currently filed case or by permission of the Probation Department.” We conclude this condition is overbroad.
In Perez, the probation condition at issue provided: “‘The defendant shall not attend any Court hearing or be within 500 feet of any Court in which the defendant is neither a defendant nor under subpoena. The defendant shall inform the probation officer prior to any Court appearance.’” (Perez, supra, 176 Cal.App.4th at p. 383.) Writing for the court, Presiding Justice Arthur Gilbert noted that gang probation conditions help foster rehabilitation, and in appropriate cases may be tailored to protect witnesses, parties, and court personnel. (Id. at pp. 383-384.)
However, the particular condition at issue in Perez “is not limited to protecting specific witnesses or parties, nor is it confined to trials involving gang members. It is so broad that it restricts Perez from engaging in activities that are unrelated to future criminality. [¶] ‘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.’ [Citation.] A court may not issue broad restraints on liberty that are completely unrelated to the defendant’s crime, conduct and future criminality, without a showing justifying the need for the restriction. [Citations.]” (Perez, supra, 176 Cal.App.4th at p. 384.) “The Attorney General has not shown why a narrower condition restricting attendance at trials of gang members and prohibiting contact with witnesses would not suffice. A narrow condition that achieves rehabilitation should be used in place of broad conditions that prevent otherwise lawful conduct and necessary activities.” (Ibid.)
Although the condition in this case is different than the condition in Perez, the Attorney General concedes that it too, is overbroad. We agree. Public trials are a fundamental part of our society, and a person should not be prevented from attending trials absent a specific reason, and such limitation must be drawn as narrowly as possible.
Defendant proposes that any limitation on attending trials be confined to trials of Hell Bent members. We reject this proposal for two reasons. First, criminal gangs affiliate with each other from time to time. Second, gang members may attend trials of enemy gangs, either to collect information to further nefarious gang activities or to intimidate participants and spectators. Therefore, it is reasonable to forbid defendant from attending the trials of any known gang members.
The Attorney General proposes that condition 41 should be modified to provide that defendant: “SHALL NOT be in a courthouse to attend the trials of gang members nor shall he have any contact with the witnesses in such trials, except with the express permission of the Probation Department, or unless his attendance at such a trial is compelled by a subpoena.”
We generally agree, but add a requirement that the defendant know the trial involves gang members, or has been so advised by a probation officer. (See In re Vincent G., supra, 162 Cal.App.4th at pp. 245, 247-248 [modifying juvenile gang probation terms to add similar knowledge requirement].)
The restriction on attending trials is modified to state that defendant: “SHALL NOT be in a courthouse to attend the trial of any person defendant knows is a gang member, or has been advised by the probation department is a gang member, nor shall he have any contact with the witnesses in such trials, except with the express permission of the Probation Department, or unless his attendance at such a trial is compelled by a subpoena.”
DISPOSITION
The trial court is directed to prepare a probation order conforming to this opinion. The judgment is otherwise affirmed.
We concur: SIMS, Acting P. J., HULL, J.
Defendant has a criminal record dating back to 1988, including misdemeanor and felony weapons offenses and felony spousal abuse, and repeated probation violations, as well as new misdemeanor offenses in 2004 and 2006. The probation report shows no facts about this case that lessened culpability; instead, defendant was sophisticated and used a false identity and driver’s license. The report also states defendant was on probation at the time of these offenses, due to a drunk driving conviction.
When a defendant has two felony convictions, probation should not be granted unless “the interests of justice would best be served[.]” (Pen. Code, § 1203, subd. (e)(4).) It is not clear how justice was served here. However, the District Attorney did not file a writ challenging the grant of probation, therefore we need not consider whether the trial court abused its discretion. (Pen. Code, § 1238, subd. (d); 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, § 73, pp. 317-318.)