P. v. Bermudez
Filed 7/26/13
P. v. Bermudez CA1/4
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
ABEL
BERMUDEZ,
Defendant and Appellant.
A136220
(Solano County
Super. Ct. No. FCR290461)
I.
Introduction
Appellant
Abel Bermudez challenges two conditions of felony probation imposed following
his conviction by jury for
a deadly weapon (Pen. Code, § 245, subd. (a)).
his association with known gang members and prohibiting him from applying any
tattoos to his body, were unconstitutionally overbroad.
We
conclude that appellant’s challenges have been forfeited by his failure to
object below. Accordingly, we affirm the
conditions of probation imposed.
II.
Factual and Procedural Backgrounds
On
June 12, 2012,
title="">[3] an amended
information was filed by the
County District Attorney charging appellant with one count each of
(§ 245, subd. (a)(1)), vandalism (§ 594, subd. (a)), driving under
the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)), and
driving while having a blood-alcohol content of .08 percent or higher (Veh.
Code, § 23152, subd. (b)). The
information also included special allegations, including that appellant
committed the crimes alleged in counts one and two for the benefit of a
of section 186.22.
A
jury trial commenced on June 12, and continued over eight days. On June 22, the jury returned its verdict
finding appellant guilty of all four counts.
The jury also found not true the criminal street-gang special allegations
relating to counts one and two. The
trial judge referred the issue of sentencing to the county probation department
for a presentence evaluation.
A
presentence report was filed by the probation department on July 27,
recommending a formal grant of probation with conditions imposed. As pertinent to the issue raised on appeal,
the report indicated that appellant had a juvenile record in that he had been
adjudged a ward of the court in 2006 after appellant and his friends had
“tagged†gang graffiti on a utility box and on other public property. At that time, appellant admitted to
“h[anging] out†with gang members, and his mother confirmed then he had Sureño
gang affiliation. Appellant’s mother was
interviewed in connection with the current matter, and confirmed again that he
“was involved in a gang lifestyle and was rebellious.â€
Among
the conditions of probation recommended by the probation department were the
following:
“Defendant
is prohibited from being present at any known gathering of any gang.
“Defendant
is prohibited from associating with any known members or associates of any
gang.
“Defendant
is prohibited from associating with persons in possession of weapons.
“Defendant
is prohibited from wearing any gang-associated clothing, emblems, or insignia.
“Defendant
is prohibited from possession [sic]
gang-related paraphernalia, including, but not limited to, gang graffiti,
symbols, photographs, member’s roster, or other gang writings; and
gang-oriented publications, including, but not limited to, ‘Teen Angels’ and
‘Street Life.’
“Defendant
is prohibited from acquiring any tattoos, permanent or temporary, and/or any
gang-related burns/marks.
“Defendant
is prohibited from being present at any Court proceeding involving gang members
to whom he/she is not a party or a subpoenaed witness.â€
Sentencing
took place at a hearing held on July 27.
After the trial court announced its decision to follow the
recommendation of the probation department and grant probation, appellant’s
counsel made an objection to the inclusion of all proposed “gang terms†because
“the gang allegation was found untrue in this case.†The trial court went on to put on the record
a number of other, unrelated conditions of probation, and then turned to those
relating to gang contacts and activities.
First,
the trial court stated that, despite the jury’s negative findings as to the
criminal street gang allegation: “I think there is ample evidence to support
gang activities on behalf of this gentlemen.
And I think it’s essentially for his rehabilitation that he not
associate—or that he comply with certain of these gang terms. I may not impose all of them.†The court then went through each proposed probationary
gang term individually. While doing so,
the only additional comment made by appellant’s counsel concerned the single
condition that appellant not wear any gang associated clothing, noting that the
condition was “a little vague.†In
response, the court stated that it would not impose a prohibition relating to
clothing at all. The court on its own
also modified several other gang terms of probation recommended in the
presentence report.
In
total, the court imposed the following conditions to which no additional
objections were made:
“Not
be present at any known gathering areas of [gangs].
“Not
knowingly associate with any known members or associates of any gang.
“Not
possess a weapon or associate with persons in possession of weapons.
“Not
wear any gang-associated . . . emblems/insignia.
“Not
possess any gang-related paraphernalia (including, but not limited to, gang
graffiti, symbols, photographs, members’ rosters, or other gang
writings) . . . .
“Not
acquire any tattoos (permanent or temporary), or any gang-related burns/marks.
“Not
attend any court proceedings involving gang members to which defendant is not a
party or a subpoenaed witness.â€
This
appeal followed.
III.
Discussion
As
noted, appellant challenges the breadth of only two of the so-called “gang
terms†of probation imposed by the trial court as conditions of his
probation. Perhaps anticipating
respondent’s forfeiture argument, appellant characterizes trial counsel’s
objection below as being a “blanket objection,†which was sufficient to allow
the court to modify or delete the challenged instructions, or to explain why
they were being imposed, thereby preserving the issue for appeal.
We
disagree that counsel’s objection encompassed the overbroadness argument made
now on appeal. Trial counsel’s objection
was only that no gang terms of probation could be imposed because the jury
found the section 186.22 street gang enhancements not to be true.
it was in the form of an objection or not, was that the gang “clothingâ€
prohibition was “a little vague,†a point taken by the trial court in striking
that condition entirely.
Our
Supreme Court recently has reviewed the law of forfeiture through failure to
object at sentencing in the trial court in People
v. McCullough (2013) 56 Cal.4th 589 (McCullough). In that case, the issue was whether the
failure to object to the imposition of a booking fee forfeited the right to
raise on appeal the lack of substantial evidence supporting the defendant’s
ability to pay. (Id. at p. 591.) The
high court concluded that such a claim was indeed forfeited by failing to
object on the ground that there was no evidence the defendant had the ability
to pay the fine. In the course of its
analysis, the court reviewed the recent development of the law dealing with
sentencing forfeitures in general, including those relating to the conditions
imposed incident to a grant of probation:
“Our
application of the forfeiture bar to sentencing matters is of recent
vintage. In People v. Welch (1993) 5 Cal.4th 228 . . . (
a challenge to the reasonableness of a probation condition because she failed
to raise it when sentenced. In People v.
Scott (1994) 9 Cal.4th 331, 354 . . . (Scott), we held the defendant forfeited a claim that the sentence
imposed on him, ‘though otherwise permitted by law, [was] imposed in a
procedurally or factually flawed manner.’
Both cases provided for only prospective application of the rules they
announced because formerly such hearings were ‘largely conducted under the
assumption’ that sentencing error claims, including challenges to probation
terms, could ‘be raised in the first instance on appeal.’ (Scott,
at p. 337; see Welch, at
p. 238 [‘existing law overwhelmingly said no . . . objection’ to
terms of probation ‘was required’ to preserve the issue for appeal].) Welch
and Scott brought the forfeiture rule
for alleged sentencing errors into line with other claims of trial court error,
rather than placing such claims outside the general rules regarding forfeiture:
unless a party makes a contemporaneous objection, he or she generally cannot
challenge a court’s ruling for the first time on appeal. ([In re]
Sheena K. [(2007)] 40 Cal.4th
[875,] 880-881.)†(McCullough, supra, 56
Cal.4th at p. 594.)
The
single case cited by appellant on the forfeiture issue is not of assistance to
his claim that objections to the two gang terms of probation were preserved for
appeal. In People v. Brandão (2012) 210 Cal.App.4th 568. In that case, defense counsel did object at
sentencing on the ground that “ ‘[t]here is no [gang] nexus in this
case.’ †(Id. at p. 571.)
However, before counsel could continue with her objection, the trial
court interrupted (albeit not “brusque[ly]â€) by stating it was “uninterested in
a challenge to the no-gang-contact provision.â€
(Id. at p. 572.) Because counsel was not given a reasonable
opportunity to state constitutional grounds for the challenge, the reviewing
court distinguished the circumstances there from those in People v. Gardineer (2000) 79 Cal.App.4th 148, 151, which held that
one objecting to probation conditions on constitutional grounds has an
obligation to state those grounds specifically in order to preserve them on
appeal. (Ibid.).
title="">[6] Therefore, the appellate court concluded that
the defendant’s objections to the constitutionality of gang terms imposed as a
condition of probation had been preserved the issue for appeal. (Ibid.)
Because
appellant made no objection to either term of probation now challenged on
appeal during sentencing, after being given ample opportunity to do so by the
trial court at sentencing, the claims of error have been forfeited.
IV.
Disposition
judgment is affirmed.
_________________________
RUVOLO,
P. J.
We concur:
_________________________
RIVERA, J.
_________________________
HUMES, J.
Penal Code, unless otherwise indicated.
name="_ftn2" title=""> [2] While
the court record filed on appeal is comprised of more than 1200 pages, the
reporters’ transcripts from appellant’s preliminary hearing and subsequent
trial are not material to the single issue raised on appeal. Appellant does not argue on appeal that there
was no factual basis for imposing the no-gang-contact and tattoo prohibitions
as conditions of his probation.
Therefore, only those facts and proceedings which relate to appellant’s
contention on appeal that the challenged conditions imposed were
unconstitutionally overbroad are discussed.
