Opinion
H043633
01-29-2018
THE PEOPLE, Plaintiff and Respondent, v. JAVIER ROSALES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SS151840A)
This appeal presents challenges to several common probation conditions. Defendant Javier Rosales pleaded no contest to a charge of receiving stolen property (Pen. Code, § 496, subd. (a)), and was granted probation. He contends that three of the probation conditions imposed by the trial court are invalid: (1) an order that he stay 100 yards away from the victim, and the victim's residence, vehicles, and place of employment; (2) a proscription on obtaining any new tattoos; and (3) a requirement that he obtain permission from his probation officer or the court before moving to a residence out of the county or leaving the state. Under the circumstances presented here, we find the challenged conditions comply with applicable legal standards. We will therefore affirm the judgment.
I. BACKGROUND
The probation report prepared for sentencing summarized the police report of the offense. When "John Doe" parked his silver Nissan at work in King City, he was accosted by a male who threatened in Spanish to shoot him if he did not get out of his car. When Doe did get out of his car, the male clubbed his head with a handgun and demanded his wallet and cell phone. The suspect broke Doe's cell phone and left in another vehicle with several of Doe's possessions, including his wallet, which contained $3,800 in cash and his paycheck in the amount of $1,947.88. The payroll check was cashed about five days later at a King City liquor store. The liquor store's security camera footage appeared to show that defendant had cashed the check; however, Doe was unable to identify defendant as the one who had robbed him.
When defendant entered a no contest plea as part of a negotiated disposition, he signed a waiver of rights form that included the following paragraph: "14. (Appeal and Plea Withdrawal Waiver) I hereby waive and give up all rights regarding state and federal writs and appeals. This includes, but is not limited to, the right to appeal my conviction, the judgment, and any other orders previously issued by this court. I agree not to file any collateral attacks on my conviction or sentence at any time in the future. I further agree not to ask the Court to withdraw my plea for any reason after it is entered." Handwritten above "all rights" was "except IAC." Defendant initialed this paragraph. As the Attorney General notes, defendant did not initial paragraph 15, titled "(Limited Waiver for Non-Stipulated Sentence)."
He also initialed a separate unnumbered paragraph confirming that, "I will receive felony probation with up to one year in jail as a condition of probation." At the hearing, defendant answered "Yes" when the court asked if he understood that "you'll be giving up your right to appeal and withdraw your plea as well." After accepting defendant's plea, the court scheduled sentencing and referred the case to the probation department for a report.
The probation report noted the crime represented "defendant's first felony conviction as an adult," at the age of nineteen. It followed "a clear and linear path" from "his juvenile criminal history," which began in 2010. He was expelled from King City High School in the ninth grade. He was unemployed and supported by his mother and stepfather, who provide him with a stable living situation. He had a five-year-old child by one mother and a three-month-old daughter with a different mother. The probation officer noted that while defendant claimed drugs and crime are not a problem in his neighborhood, it was adjacent to another area of King City "which is known to be a high crime area and an area with a higher density of Sureno gang members residing there." His juvenile crimes included receiving stolen property in 2010 (Pen. Code, § 496, subd. (a)) and first degree burglary in 2012 (Pen. Code, § 459) and "at least three violations of juvenile probation as a result of positive marijuana use tests."
Defendant denied being a member of any particular gang subset, but admitted being a Sureño associate and in " 'good standing' " with the Sureño criminal street gang. He has several gang-related tattoos, including the State of California on his right rib cage, "a tattoo of lips on his neck known to represent the number 13, and a 'falling' Norteno star on his face." He has "MKL" tattooed on his wrist, letters with unknown significance but in a format typical of how criminal street gangs identify themselves by location.
The probation report noted conflicting information about defendant's standing with Sureños. There was a 2014 report of defendant's statement that he had dropped out several years earlier and received death threats. He also stated in April 2015 that he was a drop-out, but in October 2015 and again in March 2016, he told jail classification officers he was an active Sureño and he was housed without incident in a Sureño jail pod.
Defendant declined to discuss the offense with the probation officer, other than to admit he had received stolen property. It was the probation officer's impression that defendant was manipulative during their interview, purporting to be interested in rehabilitating without proposing concrete steps or divulging anything incriminating. According to the probation officer, defendant had "been mentored by the criminal hive mind of the Sureño criminal street gang." He was at "a significant crossroads where he will decide to fortify himself in the comforting [mystique] of gang life or abandon what he knows for something new, and potentially better than what he has lived. As the defendant is entrenched in the gang lifestyle, gang restrictions are recommended to guide and steer [defendant's] path."
A. RECOMMENDED PROBATION CONDITIONS
The probation report recommended formal probation with 26 conditions, including the following relevant to this appeal: "3. Not change place of residence from Monterey County or leave State of California without permission of the probation officer. [¶...¶] "7. Pay victim restitution to John Doe in an amount and manner to be determined by the Monterey County Revenue Division. (PC 1202.4(f)) [¶...¶] "15. Not knowingly come within 100 yards of the victim, the victim's residence, the victim's place of employment, and any vehicle the victim owns or operates. [¶...¶] "21. Do not obtain any new tattooing upon your person while on probation supervision. You shall permit photographing of any tattoos on your person by law enforcement. [¶...¶]"
The probation officer reported before sentencing that she was "unable to directly contact the victim, John Doe 1, as no other contact information was provided other than his residence address." The victim was sent correspondence before the sentencing hearing requesting information regarding any losses suffered.
B. IMPOSITION OF PROBATION CONDITIONS
At sentencing, defense counsel objected to proposed probation conditions "3, 9, 10, 11, 17, 18, 20, 21, and 22 as having no nexus to the crime and vague and overbroad." The court agreed to strike proposed condition 22 and also condition 24 (to which defendant had not objected), and to modify condition 3 to read, "Not change place of residence from Monterey County or leave State of California without permission of the probation officer or the court." The court overruled defendant's remaining objections "given the need for rehabilitation and the information contained in the report about the gang affiliation, association, whatever you want to call it." The court suspended imposition of sentence for three years and placed defendant on formal probation "under the terms and conditions of probation set forth in the report." The court orally emphasized six of the 24 conditions imposed. Regarding condition 15, the court stated, "Do not knowingly come within a hundred yards of the victim - this is John Doe - his residence, his place of employment, or any vehicle the victim owns and operates."
We do not recite the conditions to which defendant objected but has not challenged on appeal.
The stricken conditions were gang related.
II. DISCUSSION
A. REVIEWABILITY
Before reaching the merits of defendant's contentions, we must resolve two threshold issues: the Attorney General's argument that the appeal is barred because defendant agreed to waive his appellate rights as part of his plea agreement, and the alternative argument that the appeal is barred because defendant failed to obtain a certificate of probable cause.
1. Defendant's General Waiver of Appellate Rights Does Not Bar Appeal of Probation Conditions Not Specified in the Plea Agreement
Appeal of a criminal judgment is a right conferred purely by statute that can be waived by a defendant. (People v. Vargas (1993) 13 Cal.App.4th 1653, 1659.) "The burden is on the party claiming the existence of the waiver to prove it by evidence that does not leave the matter to speculation, and doubtful cases will be resolved against a waiver." (Id. at p. 1662.) A general waiver of appeal rights does not ordinarily include error that occurs after the waiver "because the defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error." (People v. Mumm (2002) 98 Cal.App.4th 812, 815.) When a defendant waives the right to appeal as part of a plea agreement, the waiver encompasses a challenge to any part of the sentence that is specified by the plea agreement. (People v. Panizzon (1996) 13 Cal.4th 68, 85.) But when a sentencing issue is left unresolved by the plea agreement, the waiver of appellate rights does not extend to those unresolved issues, which could not necessarily have been foreseen at the time of the waiver. (Ibid.)
For that reason, in People v. Kennedy (2012) 209 Cal.App.4th 385, 391, this court found that a general waiver of appeal signed as part of a plea agreement did not prevent the defendant from challenging an alleged misapplication of conduct credits, because the plea agreement made no mention of conduct credits. Similarly, the plea form here made no mention of the probation conditions defendant now challenges on appeal. While it did specify that defendant would be granted probation, the particular conditions to be imposed (with the exception of a one year county jail term) were unspecified until sentencing. So while defendant knew at the time he agreed to waive appellate rights that he would be granted probation, he did not know the conditions he is appealing would be imposed. He therefore could not have knowingly and intelligently waived his right to appeal them, at least not under the more general language used in the waiver here, which does not reference probation conditions. (See, e.g., People v. Vargas, supra, 13 Cal.App.4th at p. 1663 [a general waiver of appellate rights that does not specifically mention a waiver of future sentencing error cannot waive prospective error].)
2. Certificate of Probable Cause Not Required
California Rules of Court, rule 8.304(b)(4)(B), provides that no certificate of probable cause is required by section 1237.5 to appeal after a plea of guilty or nolo contendere if the appeal is based on "[g]rounds that arose after entry of the plea and do not affect the plea's validity." "[T]he critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5." (People v. Buttram (2003) 30 Cal.4th 773, 782 (Buttram).)
The Attorney General asserts that defendant is implicitly challenging the waiver of his appellate rights, which he cannot do without a certificate of probable cause. Defendant responds that he is not challenging "the validity of his waiver, either explicitly or implicitly." His position is simply that "the waiver does not encompass sentencing issues occurring after its execution."
In Buttram, the Supreme Court determined that "a plea agreement providing for a maximum sentence inherently reserves the parties' right to a sentencing proceeding in which (1) as occurred here, they may litigate the appropriate individualized sentence choice within the constraints of the bargain and the court's lawful discretion, and (2) appellate challenges otherwise available against the court's exercise of that discretion are retained ... . Such a claim ... does not attack the validity of the plea" and does not require a certificate of probable cause. (Buttram, supra, 30 Cal.4th at p. 777.) We consider the plea agreement to a maximum sentence in Buttram to be comparable to the agreement to felony probation in our case. We also consider the individualized sentence choices in Buttram to be comparable to the multiple probation conditions recommended and imposed here. A challenge to the imposition of individual probation conditions does not attack the validity of the plea.
People v. Narron (1987) 192 Cal.App.3d 724 (Narron), on which defendant relies, rejected a contention that a certificate of probable cause was required to challenge the validity of a probation condition. "First, these issues are appealable without a certificate of probable cause (Pen. Code, § 1237.5) because the conditions of probation were not part of the plea bargain and were imposed after entry of the plea. [Citations.] [¶] Second, the acceptance of probation does not preclude a challenge on appeal to the validity of a probation condition. ' " [B]y accepting the benefits of probation a defendant does not waive the right to urge the invalidity of an improper, a void, condition on direct appeal from that judgment or on habeas corpus." [Citation.]' [Citations]." (Narron, supra, at p. 730.)
Based on our above conclusion that none of the probation conditions ultimately imposed (aside from jail time) was part of the negotiated plea, it follows that defendant was not required to obtain a certificate of probable cause to challenge conditions to which he had not previously agreed.
B. THE CHALLENGED PROBATION CONDITIONS ARE VALID
Defendant challenges the probation conditions requiring him to stay away from the victim, prohibiting him from obtaining tattoos, and requiring permission to move out of the county or leave the state. To the extent defendant argues the conditions are unconstitutional, we review that issue de novo. (People v. Cromer (2001) 24 Cal.4th 889, 901.) We otherwise review probation conditions for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).)
1. The Stay Away Condition
Defendant contends that condition 15 is unconstitutionally vague in requiring him to stay 100 yards away from "the victim, the victim's residence, the victim's place of employment, and any vehicle the victim owns or operates" because it does not identify the victim, the locations, or the vehicles. (The only references to the victim in the record are in condition 7, which identifies him only as "John Doe," and in the court's mention of "the victim - this is John Doe," in orally stating condition 15.) The Attorney General argues defendant's challenge to this condition has been forfeited because defendant did not object to it in the trial court and this is not the kind of "facial" constitutional challenge to probation conditions that can be first raised on appeal. (See In re Sheena K. (2007) 40 Cal.4th 875, 887 [challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth that is capable of correction without reference to the particular sentencing record developed below presents a pure question of law that cannot be forfeited].) But while the Attorney General urges it is a "factual question whether defendant understood the 'John Doe' to whom the court was referring," we understand defendant to be asserting that there is nothing on the face of those conditions or the rest of the minute order that cures their inherent vagueness. "A probation condition should be given 'the meaning that would appear to a reasonable, objective reader.' " (Olguin, supra, 45 Cal.4th at p. 382.) As there is no information in the minute order identifying the victim, we must decide whether the terms "the victim" and "John Doe" in the probation conditions are unconstitutionally vague without reference to the sentencing record, and we conclude that this objection was not forfeited.
Defendant's vagueness argument is premised on the idea that without being told the victim's name or some other identifying information, he has no way of knowing whether he is in compliance with the order that he stay 100 yards away from the victim. The underpinning of a vagueness challenge is the due process concept of fair warning. (People v. Castaneda (2000) 23 Cal.4th 743, 751.) "To withstand a constitutional challenge on the ground of vagueness, a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition." (People v. Hall (2017) 2 Cal.5th 494, 500.) Importantly though, a defendant may not be deemed in violation of a probation condition if the conduct alleged to be a violation was unwitting; that is, a probation violation can occur only if a defendant knowingly violates a condition. (Ibid.) And the stay away condition here even expressly includes the language that defendant must "[n]ot knowingly" come within the specified distance.
Applying those standards, defendant's assertion that he currently does not know who the victim is does not render the condition vague—if anything, it makes it more difficult to prove a violation of it. If defendant were to come within 100 yards of John Doe without knowing he is the victim in this case, defendant would not be in violation of the condition. If, on the other hand, he recognizes John Doe or otherwise gains an understanding of his identity and then comes within 100 yards, the knowledge requirement would be satisfied and defendant would be in violation. The trial court's decision to preserve the anonymity of the victim by not disclosing his name to defendant is a reasonable measure to protect the victim's safety that was within the court's discretion. Proving a violation of the stay away condition will require more evidence than it would if the victim were identified to defendant—the evidence would need to establish defendant understood who the victim was when he engaged in the prohibited conduct—but the court's directive is clear: if defendant knows who the victim is, he must take care not to come within 100 yards of that person or he will be in violation of probation. The same is true if he learns the location of the victim's home or work, or what vehicle he drives. Defendant has fair notice of the prohibited conduct and therefore the stay away condition is not unconstitutionally vague.
We note that John Doe is commonly used legal pseudonym that either designates an unidentified male individual or conceals the identity of a known male individual. (Cf. Pen. Code, § 293.5; Welf. & Inst. Code, § 6603.7 [sex offense victims may be designated as Jane Doe or John Doe]; Civ. Code, § 1708.85, subd. (f)(1) [authorizing a civil proceeding brought "using a pseudonym, either John Doe, Jane Doe, or Doe" to enjoin distribution of any reproduction of another person's intimate body parts or sexual activities].)
2. The Tattoo Prohibition
Condition 21 instructs defendant in part, "Do not obtain any new tattooing ... while on probation supervision." On appeal defendant contends that this condition is an unconstitutionally overbroad infringement on his right of free speech. "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." (See In re Sheena K., supra, 40 Cal.4th 875, 890.) On the other hand, "[j]ust 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." (U.S. v. Knights (2001) 534 U.S. 112, 119.)
The Attorney General points out that two opinions have upheld similar conditions prohibiting any new tattoos. In In re Antonio C. (2000) 83 Cal.App.4th 1029 (Antonio C.), a juvenile admitted association with, but not membership in, the Sureño gang. (Id. at p. 1032.) He challenged a probation condition that barred him from obtaining "any new tattoos, brands, burns, piercings or voluntary scarring." (Ibid.) The Fifth District Court of Appeal assumed without deciding that tattoos qualify as speech protected by the First Amendment, but concluded that the probation condition did not unduly burden free speech rights. (Id. at p. 1034.) The court compared the condition to a regulation of the time, place, and manner of speech, not its content.
In re Victor L. (2010) 182 Cal.App.4th 902 (Victor L.), addressed a challenge by a known member of a Sureño subset to a similar probation condition, prohibiting him from obtaining "any new tattoos, brands, burns or voluntary scarring." (Id. at p. 909.) Victor L. quoted the reasoning of Antonio C. with approval. (Victor L. at pp. 927-928.) Though the appellant sought to distinguish Antonio C. on the basis he had turned 18 by the time he was placed on probation and it is legal for a person 18 or older to obtain a tattoo, the court 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. at p. 928.)
As defendant points out in his reply brief, both decisions involved minors and stated that since the constitutional rights of minors are more limited, probation conditions which are permissible for minors may be unconstitutional for adults. (Antonio C., supra, 83 Cal.App.4th at p. 1033; Victor L., supra, 182 Cal.App.4th at p. 910.) But we find the reasoning in those cases likening a tattoo prohibition to a time, place, and manner restriction (Antonio C. at p. 1032), and finding a tattoo prohibition for gang members appropriate "regardless of their age" (Victor L. at p. 928) to be equally applicable here.
Defendant cites Anderson v. City of Hermosa Beach (9th Cir. 2010) 621 F.3d 1051 (Anderson), which decided that "[t]attoos are generally composed of words, realistic or abstract images, symbols, or a combination of these, all of which are forms of pure expression that are entitled to full First Amendment protection." (Id. at p. 1061.) But like Antonio C., the 9th Circuit in Anderson recognized the principle that a regulation of expression can be constitutional when "it is a reasonable 'time, place, or manner' restriction on protected speech." (Anderson at p. 1059.)
Defendant argues that this condition goes "too far. It prohibits all speech, not just speech related to [defendant's] future criminality or rehabilitation. For example, the condition would prevent [defendant] from getting his child's name tattooed on his body." It is true that the condition prohibits any kind of new tattoo, but it is limited in time to the period of probation, contemplated to be three years. It is also limited in manner to expressions using defendant's skin as the canvas. It does not prohibit other forms of expression by defendant during that period.
We acknowledge that not every justification offered by Antonio C. and Victor L. was intended to be equally applicable to adult probationers and that defendant was 18 years old at the time of his crime and 19 at the time of sentencing. However, given the limited restriction on defendant's freedom of expression and the countervailing interest in curtailing his gang activity, we conclude the condition is not unconstitutionally overbroad.
As the Attorney General points out, defendant can seek modification of this condition to allow a new tattoo with the permission of his probation officer or the court. Such a modification, however, is not required to preserve the constitutionality of the condition.
3. The Residency Requirement
Condition 3 requires that defendant "[n]ot change place of residence from Monterey County or leave State of California without permission of the probation officer or the court." Defendant contends this condition is invalid for two reasons: it is not reasonably related to his crime or future criminality, and it infringes on his constitutional right to travel.
"[A] condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (People v. Lent (1975) 15 Cal.3d 481, 486.) A condition of probation that enables a probation officer to supervise his or her charges effectively is reasonably related to future criminality. (People v Soto (2016) 245 Cal.App.4th 1219, 1227 (Soto).) We find the condition in this case to be necessary for the probation officer to effectively supervise defendant, and therefore sufficiently related to future criminality that it was not an abuse of discretion for the trial court to impose it. There can be little question that a probation officer would have difficulty supervising defendant if he were to move to a county many miles away, or if he routinely left the state at will.
Defendant relies on this court's decision in Soto, which found a similar residency requirement invalid because nothing in the record suggested that leaving the county or state would affect the defendant's rehabilitation. (Soto, supra, 245 Cal.App.4th at p. 1228.) But the facts in this case differ greatly from those in Soto. The defendant in Soto was convicted of driving-related offenses (driving with a blood alcohol content of 0.08 percent or higher; Veh. Code, § 23152, subd. (b); and driving on a suspended license (Veh. Code, § 14601.2, subd. (a)), and his criminal history involved another driving under the influence offense. Here, defendant is a known gang member whose previous crimes include first degree burglary (Pen. Code, § 459) and who violated the terms of his previous probation on multiple occasions. The probation report described him as "entrenched in the gang lifestyle." The trial court acted within its broad discretion in concluding that defendant requires the close supervision that this condition allows in order to achieve the rehabilitative goals of probation, even if a different offender (such as the defendant in Soto) might not. As Soto specifically points out, "there may be certain situations where obtaining the probation officer or court's approval before changing residence or leaving the state may be required for adequate supervision and may be reasonably related to future criminality." (Soto at p. 1228, fn. 3.) This is one of those cases.
And such cases will not be rare. (See People v. Moran (2016) 1 Cal.5th 398, 406 ["Imposing a limitation on probationers' movements as a condition of probation is common, as probation officers' awareness of probationers' whereabouts facilitates supervision and rehabilitation and helps ensure probationers are complying with the terms of their conditional release."].) --------
Defendant's constitutional argument is that the condition infringes upon his right to travel as protected by both the state and federal constitutions. (People v. Moran, supra, 1 Cal.5th at p. 405.) He acknowledges that a court can impose probation conditions that infringe on a probationer's constitutional rights, but argues that the condition is not narrowly tailored to promote the compelling state interest of reformation and rehabilitation. (People v. Forrest (2015) 237 Cal.App.4th 1074, 1080.)
Defendant relies on People v. Bauer (1989) 211 Cal.App.3d 937, where the court found a condition requiring probation officer approval for any residence violated the constitutional right to travel and was not narrowly tailored to achieve government interests. The Bauer court was particularly concerned that the condition would allow a probation official to forbid the defendant from living with or near his parents. (Id. at p. 944.) Here, the condition requires defendant to obtain approval only to reside outside of Monterey county. Nothing in the record indicates defendant will be prevented from living with or near close family members. Defendant worries that the condition gives his probation officer "unfettered control over his place of residence." But the condition alternatively allows defendant to obtain permission from the court. Further, no condition authorizes a probation officer to act arbitrarily in exercising discretion to grant or withhold permission to travel or relocate. (Olguin, supra, 45 Cal.4th at p. 383.) The probation officer must exercise the discretion conferred by the condition in a manner consistent with giving defendant the best chance of successfully completing probation and being rehabilitated. On this record, we find the residency and travel condition appropriately tailored to achieve that interest.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Premo, Acting P. J. /s/_________ Mihara, J.