P. v. Belman

Filed 6/10/08 P. v. Belman CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, K. Michael Kirkman, Judge. Order affirmed as modified.

Jorge Perez Belman pleaded guilty to possession of a short-barreled shotgun and was sentenced to probation, subject to certain gang-related and other conditions. He appeals, contending that (1) the court violated his due process rights by imposing the gang-related probation conditions without first holding an evidentiary hearing, (2) it abused its discretion in relying on hearsay evidence from the probation report as the basis for imposing such conditions, and (3) four of the imposed gang-related conditions were unconstitutionally overbroad and vague. The Attorney General concedes that three of the gang-related conditions must be modified to preclude only knowing behavior and we modify the order to so provide. In all other respects, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2006, Belman was arrested by police officers who responded to a domestic disturbance call at his home and found him behind the house, trying to hide a sawed off shotgun. Belman pleaded guilty to the charge pursuant to an agreement that he would be placed on probation subject to his serving 180 days in jail.

In connection with the original sentencing hearing, the probation officer prepared a report that law enforcement sources indicated Belman was a documented associate of the Vista Home Boys gang and recommended that the court place him on probation subject to gang-related conditions. At that hearing, defense counsel requested a continuance so that he could check Belman's gang status. The court continued the hearing for a little over two weeks.

At the continued hearing, Belman objected to the imposition of gang-related conditions, arguing that the charge was completely unrelated to any gang activity and that there was no evidence that he associated with the Vista Home Boys gang, and he requested another continuance to permit an evidentiary hearing on the matter. Noting that the information in the probation report, the nature of the current offense (particularly the involvement of a sawed-off shotgun) and his criminal history suggested that he was associated with the gang, the court indicated that it intended to impose the recommended conditions.

After the court denied Belman's request for a separate evidentiary hearing without prejudice to a subsequent modification request to present evidence challenging the information in the probation report, it allowed defense counsel to call Belman to testify on the matter; Belman swore under oath that he was not a member of the gang. The court found his testimony not credible and placed Belman on formal probation subject to various conditions, including the recommended gang-related conditions. Belman appeals.

DISCUSSION

1. Denial of an Evidentiary Hearing

A trial court has broad discretion to determine whether an eligible defendant is suitable for probation and what conditions should be imposed. (People v. Welch (1993) 5 Cal.4th. 228, 233.) It is within the court's discretion to impose any "reasonable" condition that it "may determine" is "fitting and proper to the end that justice may be done[.]" (Pen. Code,  1203.1, subd. (j).) A court abuses its discretion in imposing probation conditions only when its determination is arbitrary or capricious or exceeds the bounds of reason given the circumstances. (People v. Welch, supra, 5 Cal.4th at p. 234.)

Although a criminal defendant's federal due process rights do not accord the same procedural protections at a sentencing hearing as he had at trial, he does retain the rights "to present evidence tending to mitigate punishment or assist in the determination of his application for probation" and "to respond to adverse sentencing information[.]" (People v. Arbuckle (1978) 22 Cal.3d 749, 753, citing in part Pen. Code,  1204.) Accordingly, an applicant for probation will be entitled to relief on due process grounds if he shows that the hearing procedures were "fundamentally unfair." (People v. Arbuckle, supra, 22 Cal.3d at p. 754, quoting People v. Peterson (1973) 9 Cal.3d 717, 726.)

Belman maintains that the sentencing court abused its discretion, and in doing so violated his due process rights, by denying his request for an evidentiary hearing on the issue of whether he was affiliated with a gang. Notably, however, he had notice of the probation officer's recommendation that the court impose gang-related probation conditions and successfully obtained one continuance of the sentencing hearing to allow his counsel to investigate the matter. At the continued hearing, Belman had the opportunity to present evidence to contradict the factual statements in the probation officer's report and, after the court denied his request for a separate evidentiary hearing, did present such evidence. Under these circumstances, fundamental fairness did not require the court to grant Belman's request for an evidentiary hearing and the court did not abuse its discretion in denying that request. (See generally People v. Arbuckle, supra, 22 Cal.3d at pp. 754-755.)

2. Reliance on the Probation Report

It is axiomatic that issues relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court. (People v. Alvarez (1996) 14 Cal.4th 155, 186.) Even "constitutional objections must be interposed before the trial judge in order to preserve such contentions for appeal" and a defendant's failure to raise them waives those objections on appeal. (People v. Rudd (1998) 63 Cal.App.4th 620, 628.) This doctrine thus encourages a defendant to bring any errors to the trial court's attention so that that court may correct or avoid the errors and provide the defendant with a fair trial. (People v. Simon (2001) 25 Cal.4th 1082, 1103.)

Here, Belman did not make a timely or specific hearsay objection (or in fact any objection) to the trial court's consideration of the probation report. Thus, in accordance with the foregoing authorities, he cannot now be heard to object to the court's reliance on the probation report on hearsay grounds.

3. The Constitutionality of the Gang-Related Conditions

In addition to the statutory requirement of reasonableness noted above, a probation condition will be deemed "constitutionally overbroad when it substantially limits a [defendant's constitutional] rights and those limitations are not closely tailored to the purpose of the condition." (People v. Harrisson (2005) 134 Cal.App.4th 637, 641.) To survive constitutional scrutiny, a probation condition must also "be sufficiently precise for the probationer to know what is required of him . . . ." (People v. Lopez (1998) 66 Cal.App.4th 615, 630, quoting People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325.)

Belman contends that the gang-related probation conditions are vague and overbroad because they do not include a knowledge requirement, i.e., they are not limited to knowing violations (such that, for example, his association with someone who is a Vista Home Boys member would constitute a violation of the condition as written, even if he is not aware of that person's gang affiliation). As the Attorney General concedes, his argument is well-taken. (See People v. Lopez, supra, 66 Cal.App.4th at pp. 627-629.) Accordingly, we modify the order as to the gang conditions identified in section 12 b., f., i. and k. to read as follows:

"b. Not knowingly associate with any known gang member or persons who are associated with the Vista Home Boys gang.

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

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"i. Not knowingly wear, display, use, or possess any insignias, photographs, 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 Vista Home Boys gang.

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

DISPOSITION

The order is modified as set forth herein and is otherwise affirmed in its entirety.

McINTYRE, J.

WE CONCUR:

McCONNELL, P.J.

BENKE, J.

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