P. v. Barba

Filed 8/29/08 P. v. Barba CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson, Judge. Affirmed.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and James H. Flaherty III, Deputy Attorney General, for Plaintiff and Respondent.

On May 2, 2007, defendant and appellant Luis Victor Barba was charged with attempted murder. (Pen. Code, 664, 187, subd. (a).)^[1] It was also alleged that defendant committed the crime for the benefit of a criminal street gang. ( 186.22, subd. (b)(5).) On October 1, 2007, defendant pled guilty to assault with force likely to produce great bodily injury. ( 245, subd. (a)(1).) On November 8, 2007, defendant was granted three years formal probation.

On appeal, defendant argues that some of the probation conditions are invalid and unconstitutional as applied to him. We disagree and affirm.

I

FACTUAL AND PROCEDURAL HISTORY^[2]

On February 16, 2007, an unnamed victim became engaged in an altercation with defendant and his cohort, Alvaro Muro. The victim identified both defendant and Muro as gang members. Muro, a documented San Gabriel Valley gang member, used his handgun to shoot the victim twice. After being shot, the victim wrestled the gun from Muro. The victim then saw defendant come toward him with a beer bottle in hand, as if [defendant] was going to strike [the victim] with it. When the victim pointed the gun at defendant and pulled the trigger, the gun jammed; defendant then fled the scene.

Defendant was charged with attempted murder ( 664, 187, subd. (a)) and a gang enhancement allegation was alleged ( 186.22, subd. (b)(5)).

On October 1, 2007, defendant entered into a plea agreement. Defendant pled guilty to assault with force likely to produce great bodily injury ( 245, subd. (a)(1)), in exchange for the attempted murder charge and related gang enhancement allegation being dismissed. The plea agreement also provided that defendant would (1) serve 362 days in custody with credit for time served, (2) be placed on three years formal probation, and (3) be subject to terms and conditions as determined by the probation department, including gang terms.

At the sentencing hearing on November 8, 2007, defendant was placed on probation. Over defense objection, the trial court imposed four gang-related probation conditions that forbade defendant from (1) violating curfew of 10:00 p.m., (2) being within a block of a school campus without prior permission from the school administration, (3) being present at a courthouse, unless a party or defendant, and (4) possessing aerosol paint containers, permanent markers, or etching devices. Thereafter, defendant stated that he understood and accepted all of the disputed terms of probation.

II

ANALYSIS^[3]

Defendant contends that the trial court abused its discretion in imposing the four gang-related probation conditions. Specifically, defendant contends that the four terms of probation prohibit conduct that is not criminal, are not tailored to meet his rehabilitative needs, and are constitutionally overbroad. We disagree.

Under section 1203.1, the sentencing court has broad discretion to prescribe reasonable probation conditions to foster rehabilitation and to protect the public so justice may be done. [Citations.] (People v. Miller (1989) 208 Cal.App.3d 1311, 1314.) While a probationer retains rights of privacy and liberty under the federal Constitution (People v. Keller (1978) 76 Cal.App.3d 827, 832, overruled on other grounds in People v. Welch (1993) 5 Cal.4th 228, 237), probation conditions may nevertheless place limits on constitutional rights if necessary to meet the goals of probation. (People v. Bauer (1989) 211 Cal.App.3d 937, 940-941.) Furthermore, as previously stated, [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.] (People v. Lent (1975) 15 Cal.3d 481, 486.)

Prohibitions against a variety of gang-related activities have been upheld when imposed upon juvenile offenders. [Citations.] (People v. Lopez (1998) 66 Cal.App.4th 615, 624.) Furthermore, probationary proscriptions against gang-related conduct are equally proper when imposed upon adult offenders . . . . The path from gang associations to criminal gang activity is open to adults as well as to minors. (Id. at p. 625.) Moreover, the federal courts have found curtailments of an adult probationers associations with specified groups to be proper where such restrictions serve a rehabilitative purpose, even where the crime in issue was not shown to have been group related. [Citations.] (Ibid.)

Here, defendants probation report disclosed that he is an admitted member of the North Side Rialto gang. In addition, defendant has a history of criminal offenses. His previous convictions include carrying a concealed dirk or dagger ( 12020, subd. (a)(4)) and receiving stolen property ( 496, subd. (a)). Given that defendant was an admitted gang member, and given defendants consistent pattern of criminal behavior, the trial court could reasonably determine that defendants disassociation from gang-related activities was 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. [Citations.] (People v. Lopez, supra, 66 Cal.App.4th at p. 626.) The four probation conditions, as discussed in detail below, are valid.

A. Probation Condition No. 19Curfew Restriction

Probation condition No. 19 states, Be inside your place of residence every evening by 10:00 p.m. and not leave said residence before 6:00 a.m., unless there is a verifiable family emergency or you are traveling to or from a place of employment or school.

Defendant contends that the curfew restriction is invalid because it lacks a factual predicate for preventing future crimes, restricts his right to engage in intrastate travel, and is not narrowly tailored specifically to defendant.

Here, defendant is an admitted gang member who pled guilty to a crime of violence that he performed with a fellow gang member. Institution of the curfew condition is reasonably related to future criminality since it may assist defendant in disassociating himself from gang-related activities because the curfew will impose the type of structure and discipline, which defendants past suggests he is lacking. (See In re Laylah K. (1991) 229 Cal.App.3d 1496, 1502.)

We are mindful that Laylah K. involves a minor offender, not an adult offender. The decision in Laylah K. was based on a statute, Welfare and Institutions Code section 729.2, which does not apply to defendant. (In re Laylah K., supra, 229 Cal.App.3d at p. 1502.) Nevertheless, defendants conduct and criminal history show that the structure and discipline created by the curfew condition will assist him with averting fellow gang members at night. Therefore, the condition is reasonably designed to curb his future criminal behavior. (See People v. Souza (1994) 9 Cal.4th 224, 241 [the time of night is a pertinent factor in assessing the validity of a detention as 3:00 a.m. is an unusual hour for anyone to be in attendance at an outdoor social gathering].)

Furthermore, as to defendants argument that the probation condition restricts his right to travel, we note that the right of free movement is not absolute and may be reasonably restricted in the public interest. (In re White (1979) 97 Cal.App.3d 141, 149.) Here, as discussed above, the curfew condition reasonably restricts defendants right to travel because of his gang affiliation. Therefore, the probation condition is not constitutionally overbroad.

B. Probation Condition No. 22School Restriction

Probation condition No. 22 states, You shall not be on any school campus or within a one block radius of any school campus unless enrolled there, or with prior administrative permission from school authorities.

Defendant claims that this probation condition is invalid because it restricts his right to be in a public place, was not narrowly drawn, and infringes on his right to travel.

A probation condition which infringes on a constitutional right, such as a right to travel, is permissible where it is necessary to serve the dual purpose of rehabilitation and public safety. (People v. Peck (1996) 52 Cal.App.4th 351, 362.) In this case, the challenged condition serves this dual purpose because it prohibits defendant from approaching a school campus, and therefore juveniles, for purposes of recruiting children into his gang. Hence, this condition serves as a deterrent for defendant to actively recruit on behalf of his gang at a convenient location, while protecting the children from being approached by defendant.

The trial court, therefore, properly exercised its discretion in imposing this probation condition because it was reasonably related to defendants future criminality. (See People v. Carbajal (1995) 10 Cal.4th 1114, 1121 [even conditions that regulate conduct not in itself criminal are valid as long as they are reasonably related to the crime a defendant was convicted of or to any future criminality].)

C. Probation Condition 56ACourthouse Restriction

Probation condition No. 56A states, You shall not appear at any court building, including the lobby, hallway, courtroom, or parking lot unless you are a party [or a] defendant . . . .

Defendant contends that this probation condition is invalid because it restricts his right to be in a public place and is unconstitutional because it infringes on his right to travel.

Probation condition No. 56A serves the dual purpose of rehabilitating defendant and protecting the publics safety. (People v. Peck, supra, 52 Cal.App.4th at p. 362.) Specifically, because the condition prohibits defendant from attending the criminal court hearings of fellow gang members, it prevents him from engaging in witness intimidation for the benefit of his gang. Since gang members are likely to appear at criminal proceedings in an attempt to intimidate witnesses and jurors, or to threaten defendants from rival gangs, the state has a compelling interest in protecting defendants, witnesses, and jurors in such proceedings. Therefore, the state may be reasonably justified in restricting the freedom of travel and right to attend criminal court proceedings for offenders with demonstrated gang associations. (See People v. Lopez, supra, 66 Cal.App.4th at pp. 628-629 [gang-related probation conditions promote the goal of rehabilitation and public safety by forbidding conduct reasonably related to future criminality].)

D. Probation Condition No. 25Restriction on Possession of Aerosol Paint

Defendant contends that probation condition No. 25 should be declared invalid because it is not reasonably related to prevent future criminality.

Probation condition No. 25 prohibits defendant from possessing aerosol paint containers, permanent markers or etching devicesmaterials used by gang members to mark their territory or vandalize property. This condition is reasonably related to future criminality since it helps defendant to disassociate himself from gang-related activities.

In sum, defendants admitted membership in a gang and his criminal history support the courts implied finding that his gang association may deter him from successfully completing probation. The gang-related conditions promote the goals of rehabilitation and public safety by forbidding conduct reasonably related to future criminality and are thus valid. (People v. Lopez, supra, 66 Cal.App.4th at p. 626.)

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P. J.

We concur:

KING

J.

MILLER

J.

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

^[2] The facts are taken from the probation officers report.

^[3] The People contend that this appeal should be dismissed because defendant failed to obtain a certificate of probable cause. We need not address the Peoples argument because defendants challenge fails on the merits.