P. v. Bojorquez

Filed 4/2/07 P. v. Bojorquez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a judgment of the Superior Court of San Diego County, George Clarke, Judge. Affirmed as modified.

I.

INTRODUCTION

Marcos Ramon Bojorquez pled guilty to two counts of using the personal identifying information of another (Pen. Code,^[1] 530.5, subd. (a)). The trial court suspended imposition of sentence and placed Bojorquez on formal probation for three years. Among the terms of probation were various gang conditions that prohibited Bojorquez from associating with known gang members, associating with persons having firearms, wearing gang clothing, and displaying gang gestures.

On appeal, Bojorquez claims that the trial court abused its discretion in imposing the gang conditions. Bojorquez maintains that the conditions were not related to the crimes for which he was convicted. Bojorquez further contends that the conditions were not reasonably related to the prevention of future criminality because there was no showing that gang association had played a role in his life. In addition, Bojorquez claims that several of the conditions are unconstitutional because they do not contain a knowledge requirement, and therefore fail to provide him with sufficient notice of the prohibited activities. We conclude that the trial court did not abuse its discretion in imposing the gang conditions. However, we modify several of the conditions to include a knowledge requirement. As so modified, we affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2004, Guadalupe Gonzalez's husband was killed in Iraq. After his death, Gonzalez received $250,000 in military death benefits from the United States government. In August 2005, Elizabeth Tapia, a family acquaintance of Gonzalez, visited Gonzalez. Tapia surreptitiously took Gonzalez's military identification and two of her checkbooks. In December 2005, Gonzalez received a monthly bank statement that showed debits totaling $38,646.55. Gonzalez had spent only approximately $1,000 from the account during the previous month. Gonzalez called the police.

On January 18, 2006, the detective assigned to Gonzalez's case issued an identity theft alert to various law enforcement agencies and to financial and retail investigators. The next day, Gary Turner, an employee at Tipton Honda, informed police that Tapia, posing as Gonzalez, along with two persons later determined to be Bojorquez and Marcos Talamante, had purchased a Honda Accord from Tipton Honda on January 8. Talamante signed for a loan in the amount of $34,018.39 and Tapia wrote a fraudulent check to cover the balance. On January 20, 2006, Tipton Honda repossessed the car, which it located at Bojorquez's family residence.

While Turner was cleaning out the repossessed car, he found a receipt from Barclay Jewelry in the amount of $28,518.25. Turner provided this information to the detective working on the Gonzalez case. The detective learned that Tapia, posing as Gonzalez, along with Bojorquez, posing as Tapia's fiancee, and Talamante, had fraudulently purchased jewelry from Barclay Jewelry using Gonzalez's identification and one of her checks. Police also later discovered that Bojorquez was with Tapia when she made five separate fraudulent purchases totaling $15,356.25 from Fry's Electronics, using Gonzalez's checks.

In February 2006, the People filed a 24-count complaint against Tapia, Talamantes, and Bojorquez. Among the charges against Bojorquez were two counts of unlawfully using the personal identifying information of another ( 530.5, subd. (a)) (counts 1, 5).

On March 7, Bojorquez entered into a plea agreement with the prosecutor in which he agreed to plead guilty to counts 1 and 5. In return, the prosecutor agreed to dismiss the balance of the charges, stipulate to an order of probation with 180 days in custody, and refrain from filing new charges premised on the facts of this case. That same day, the court accepted Bojorquez's plea of guilty to counts 1 and 5.

On March 30, 2006, the probation officer filed a probation report with the trial court. The report noted that Bojorquez was 18 years old. With respect to Bojorquez's criminal history, the probation report indicated that in November 2002, the juvenile court had made a true finding on a charge of habitual truancy (Welf. & Inst. Code,  601, subd. (b)). In October 2003, the juvenile court found true two charges of petty theft ( 484, subd. (a)). In August 2004, the juvenile court found true a charge of first degree attempted robbery ( 664, 211, 212.5, subd. (a)) and first degree burglary ( 459, 460). In November 2005, when Bojorquez was an adult, the trial court granted him diversion after he was charged with possession of a controlled substance (Health & Saf. Code,  11377, subd. (a)).^[2] Within a month, Bojorquez had "failed to attend . . . court obligations" associated with the diversion program. Bojorquez was on probation at the time of the current offense.

With respect to Bojorquez's gang affiliation, the probation report states, "The defendant denies any gang involvement. The probation gang unit supervised the defendant and had him listed as an associate of the Otay gang." The probation report also states that Bojorquez and a number of family members were involved in a "gang related fight" in November 2002 that did not result in a conviction. In addition, the probation report notes that "gang conditions" were imposed as part of the October 2003 juvenile proceeding. The report further states, "probation is requesting that the standard . . . gang conditions be imposed."

On April 5, the trial court held a sentencing hearing. Defense counsel requested that the court not impose any gang conditions. Defense counsel argued:

"There is no indication that he is a gang member. What the probation report says is that he was supervised by a gang detail and that he had associates in a gang. What he's told me is he was supervised by that unit because of the neighborhood in which he lived, which has the ring of truth to me. . . . There is . . . no indication that he's actually a gang member, and . . . certainly no nexus between any gang activity and the crime in this case. . . ."

The prosecutor argued that the gang conditions should be imposed. The prosecutor noted, "I think that we have to give some validity to the input and the opinion and respect and the decision making of probation."

The trial court indicated that it would impose the standard gang conditions with the exception of a proposed condition prohibiting Bojorquez from being within two blocks of an area "to be determined by the probation officer." That same day, the trial court issued an order granting probation. In its order, the court suspended imposition of sentence for three years and granted Bojorquez formal probation on several conditions, including that Bojorquez serve 180 days in custody. In addition, the trial court imposed the following gang conditions:

"10. GANG CONDITIONS:

[] . . . []

"b. [] Not associate with any known gang member or persons who are associated with the Otay gang.

[] . . . []

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

[] . . . []

"j. [] Not wear, display, use, or possess any insignias, 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 ____ gang.

"k. [] Not display any gang signs or gestures."

Bojorquez timely appeals.^[3]

III.

DISCUSSION

A. The trial court did not abuse its discretion in imposing gang conditions

Bojorquez claims the trial court erred in imposing gang conditions 10(b), 10(j), and 10(k), as terms of probation. We review the trial court's imposition of the terms and conditions of probation pursuant to the abuse of discretion standard of review. (People v. Balestra (1999) 76 Cal.App.4th 57, 65.)

1. Governing law

In People v. Lopez (1998) 66 Cal.App.4th 615 (Lopez) the court outlined the law governing a trial court's imposition of probation conditions:

"Trial courts have broad discretion to set conditions of probation in order to 'foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.' [Citations.] If it serves these dual purposes, a probation condition may impinge upon a constitutional right otherwise enjoyed by the probationer, who is 'not entitled to the same degree of constitutional protection as other citizens.' [Citation.]

"However, the trial court's discretion in setting the conditions of probation is not unbounded. A term of probation is invalid if 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 and footnote omitted.] Conversely, '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.' [Citation.]" (Lopez, supra, 66 Cal.App.4th at p. 624.)

In Lopez, the court considered whether the trial court had abused its discretion in imposing gang conditions similar to the conditions the court imposed in this case. Noting that courts had upheld gang probation conditions when imposed on juvenile offenders in a number of cases, the Lopez court stated, "We believe probationary proscriptions against gang-related conduct are equally proper when imposed upon adult offenders such as Lopez." (Lopez, supra, 66 Cal.App.4th at p. 625.)

The Lopez court concluded that the trial court had not erred in imposing gang conditions in view of the following circumstances:

"The probation report pertaining to Lopez disclosed that he admitted membership in the Norteno gang. The gang apparently has some history of overt criminal behavior because it was known to the Tulare County Sheriff's Department. The present conviction is Lopez's first adult felony, but he has a lengthy history of juvenile offenses and misdemeanor adult crimes. Although an adult, he was only in his early 20's. Even if the evidence was insufficient to show that the present crime was in some manner gang related, Lopez's age, gang affiliation, and consistent and increasing pattern of criminal behavior warranted a conclusion by the trial court that Lopez's disassociation from gang-connected 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.]" (Lopez, supra, 66 Cal.App.4th at p. 626.)

There is no requirement that a person be shown to be a member of a gang before a court may impose gang conditions. "Where a court entertains genuine concerns that the minor is in danger of falling under the influence of a street gang, an order directing a minor to refrain from gang association is a reasonable preventive measure in avoiding future criminality and setting the minor on a productive course. Evidence of current gang membership is not a prerequisite to imposition of conditions designed to steer minors from this destructive path." (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1502, disapproved on another ground by In re Sade C. (1995) 13 Cal.4th 952, 983, fn. 13.)

2. The trial court did not err in imposing the gang conditions in light of

evidence indicating Bojorquez's association with a gang

It is undisputed that the gang conditions in this case were not related to the crime for which Bojorquez was convicted and that the conditions relate to conduct that is not in itself criminal. Accordingly, we may uphold the gang conditions only if they forbid conduct that is reasonably related to future criminality. (See Lopez, supra, 66 Cal.App.4th at p. 624.)

While Bojorquez states that mere "supervision by the gang unit as a juvenile, without more, cannot support a finding that he was in any way involved in a gang or gang-related activity," the probation report states that "the probation gang unit supervised the defendant and had him listed as an associate of the Otay gang." (Italics added.) An "associate" of a gang is a person who participates and assists a gang in its criminal activities, without actually being a member of the gang. (See People v. Hall (1998) 67 Cal.App.4th 128, 133 [expert testimony discussing the defendant's status as a gang "associate"].) The probation report also notes that Bojorquez, along with a number of his family members, was involved in a "gang related fight" in 2002.  In addition, "gang conditions" were imposed as part of the October 2003 juvenile proceeding.

While the record of Bojorquez's involvement with gangs is not overwhelming, the record supports the conclusion that Bojorquez is an associate of a gang. "[A]ssociation with gang members is the first step to involvement in gang activity." (Lopez, supra, 66 Cal.App.4th at p. 624, quoting In re Laylah K., supra, 229 Cal.App.3d at p. 1501.) Bojorquez's age, gang association, and consistent and increasing pattern of criminal behavior warranted the trial court's determination that a prohibition on participation in gang-connected activities was reasonably related to the prevention of future criminality. (See Lopez, supra, 66 Cal.App.4th at p. 626 [upholding gang conditions where "[defendant]'s age [20], gang affiliation, and consistent and increasing pattern of criminal behavior," warranted such conditions].)

Accordingly, we conclude that the trial court did not abuse its discretion in imposing gang conditions 10(b), 10(j), and 10(k), as terms of probation.

B. Probation conditions 10(f), 10(j), and 10(k), are unconstitutional insofar

as they do not include a knowledge requirement

Bojorquez claims that probation conditions 10(f), 10(j), and 10(k)^[4]are unconstitutional because they do not contain a knowledge requirement, and therefore fail to provide him with sufficient notice of the activities that the conditions prohibit. He requests that this court either strike the conditions, or modify them to include such a requirement.^[5]

We reject the People's claim that Bojorquez has forfeited this issue. (In re Sheena K. (2007) ____Cal.4th____, 2007 WL 764310, *8 [concluding "defendant did not forfeit her constitutional challenge . . . that the probation condition . . . is vague and overbroad" by failing to raise contention at sentencing].) The People state that they have no objection to modifying probation conditions 10(f), 10(j), and 10(k) to expressly include a knowledge requirement.

In light of the People's lack of opposition to the merits of Bojorquez's request to modify the conditions, we modify the probation conditions to include a knowledge requirement.^[6]

IV.

DISPOSITION

Probation condition 10(f) is modified to state: "Not associate with any persons known by defendant to have firearms or weapons in their possession." Probation condition 10(j) is modified to state: "Not wear, display, use, or possess any insignias, emblems, badges, buttons, caps, hats, jackets, shoes, flags, scarves, bandanas, shirts, or other articles of clothing that defendant knows to be evidence of affiliation with or

membership in the Otay gang." Probation condition 10(k) is modified to state: "Not knowingly display any gang signs or gestures."

As modified, the judgment is affirmed.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McDONALD, J.

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^[1] Unless otherwise specified, all subsequent statutory references are to the Penal Code.

^[2] The precise statutory basis on which the trial court granted "diversion" to Bojorquez is not clear from the record. "Penal Code section 1000 permits a court to defer judgment for certain novice drug offenders, and to divert the defendant from the normal criminal process for drug treatment. [Footnote omitted.] If diversion is successfully completed, the charges are dismissed." (People v. Kirk (2006) 141 Cal.App.4th 715, 716.)

^[3] The appeal is authorized pursuant to section 1237.5 and California Rules of Court, rule 8.304(b)(4), as a matter occurring after entry of Bojorquez's guilty plea.

^[4] Probation condition 10(f) provides, "Not associate with any persons who have firearms or weapons in their possession." Probation condition 10(j) provides, "Not wear, display, use, or possess any insignias, 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 ____ gang." Probation condition 10(k) provides, "Not display any gang signs or gestures."

^[5] Bojorquez does not provide any argument as to why the conditions should be stricken rather than modified.

^[6] In addition to failing to contain a knowledge requirement, probation condition 10(j) does not specify a gang to which it applies. In light of the trial court's imposition of probation condition 10(b) prohibiting Bojorquez from associating with persons in the "Otay" gang, we modify condition 10(j) so as also to apply to the Otay gang.