P. v.
Filed 12/5/13 P. v. Flores
CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
FAUSTINO FLORES,
Defendant and
Appellant.
H039281
(Monterey
County
Super. Ct.
Nos. SS121770A,
SS122419A)
Defendant Faustino
Flores pleaded no contest to two felony counts of
controlled substance (Health & Saf. Code, § 11377, subd. (a)) and a
misdemeanor count of resisting arrest (Pen. Code, § 148, subd. (a)(1)). The trial court suspended imposition of sentence
and placed him on probation for three years.
On appeal,
defendant contends the trial court erred by imposing gang-related probation
conditions. Defendant also contends, and
the Attorney General concedes, that he is entitled to additional
custody attributable to both his probation violation and his more recent
offenses. We will modify the judgment to
include the correct amount of custody credit and affirm the judgment as so modified.
BACKGROUND
A. First Conviction (Case No. SS121770A)
On September 16, 2012, Monterey County Sheriff’s deputies
contacted defendant and conducted a records check on him. The deputies learned that defendant was on
probation with search terms. They
proceeded to search defendant and found four bindles of methamphetamine and
several Oxycontin pills.
On September 18, 2012, the District
Attorney filed a complaint charging defendant with two counts of
& Saf. Code, § 11377, subd. (a)).
Defendant pleaded no contest to count 1, and count 2 was dismissed. The trial court placed defendant on probation
pursuant to Proposition 36 (Pen. Code, § 1210.1). His
probation conditions did not include any gang conditions.
B. Second
Conviction (Case No. SS122419A) and Probation Violation
On
December 19, 2012, Salinas
police officers were patrolling a motel when they contacted defendant. Defendant initially gave the officers a false
name, but the officers determined his true identity based on his tattoos. When the officers asked defendant to move
towards them, he fled up the motel stairway.
The officers followed him, and defendant continued to run until he fell.
Defendant struggled with the officers
when they tried to detain him. After the
arrest, the officers searched defendant and found methamphetamine. He also admitted to smoking methamphetamine
earlier that night.
On December 21, 2012, the District
Attorney filed a complaint charging defendant with possessing a controlled
substance (Health & Saf. Code, § 11377, subd. (a)), being under
the influence of a narcotic (Health & Saf. Code, § 11550, subd. (a)),
and resisting arrest (Pen. Code, § 148, subd. (a)(1).) On January
2, 2013, in exchange for felony probation, defendant pleaded no
contest to possessing a controlled substance and resisting arrest. Defendant also admitted violating probation in
case No. SS121770A based on the same conduct. The trial court placed him on formal probation
for three years and ordered him to serve 180 days in county jail, “concurrent
with all other cases.†His probation
conditions included gang conditions.
C.
Conditions in Case No. SS122419A
The trial court imposed the
following gang-related probation conditions in Case No. SS122419A: “Not visit or remain in any area you know,
have reason to know, or are told by the Probation Officer to be a
gang-gathering area. (The term ‘gang’ in
these conditions of probation refers to ‘criminal street gang’ as defined in PC
§ 186.22.)†“Not associate with any
individuals you know or are told by the Probation Officer to be gang members,
drug users, or on any form of probation or parole supervision.†“Not possess, wear, use or display any item
you know, have reason to know, or have been told by the Probation Officer to be
associated with membership or affiliation in a gang, including, but not limited
to, any insignia, emblem, button, badge, cap, hat, scarf, bandanna, or any
article of clothing, hand sign, or paraphernalia to include the colors red.†“Do not obtain any new gang tattooing upon
your person while on probation supervision.
You shall permit photographing of any tattoos on your person by law
enforcement.â€
DISCUSSION
A.
Gang-Related Probation Conditions
Defendant contends the trial court
erred by imposing gang-related probation conditions. He claims there is no rational nexus between
the prohibited conduct and deterring future criminality.
1. Probation
Report
The probation officer recommended
imposition of gang-related probation conditions. The probation report noted that on the
evening of December 19, 2012, defendant had been loitering at a motel,
which was “frequented by individuals selling drugs, as well as gang members.†The report also addressed defendant’s gang
involvement, stating: “At the time of
his arrest, the defendant asked to be housed with active Norteño gang members. He stated to the [probation officer] that he
does not ‘gang bang,’ but he associates because of his family ties and friends
from the neighborhood.†In 2003, the
juvenile court had imposed limited gang conditions for a misdemeanor offense
defendant committed that year. Defendant
had committed one other juvenile offense and 10 prior adult offenses. No gang conditions had been imposed in those
11 cases.
2.
Defendant objected to the gang conditions
at the sentencing hearing on January 31, 2013. He argued that he “has never had a gang case
ever, even as a juvenile. He has no gang
tattoos. [¶] In fact, the only nexus that is indicated is
that he has – he had asked to be housed with the Nortenos, because he has some
family that are involved there, and he felt safer. [¶] So
certainly, saying he would feel safer in a particular pod doesn’t mean that he
is a gang member. It doesn’t mean that
he is a gang associate.â€
The prosecutor responded that there
was a sufficient nexus between the probation conditions and preventing future
criminality. He argued: “Number 1, the defendant does state that he
would like to be in the Norteno gang pod.
As well . . . there was a case from 2003 where he had limited gang
terms. . . . [I]t is everybody’s desire Mr. Flores has a successful period of
probation. Associating with gang members
when an individual has a background in drugs who has a background in violence,
the notion of being successful on probation is further hampered by any
association with gang members.â€
The probation officer agreed that
the conditions were appropriate “based on his housing [and] based on statements
that [defendant] does associate with gang members. And as a juvenile, he was on limited terms.â€
The trial court found that the
evidence in the record justified imposition of the gang conditions. The court relied on defendant’s request to be
housed with Norteños and his statement that “he had associated with gang
members because of his family ties and friends from the neighborhood.†The court also relied on defendant’s 2003 juvenile
case, stating that “albeit old, there were limited gang terms and conditions.†In support of its ruling, the court cited to
1496 and People v. Lopez (1998) 66
Cal.App.4th 615 (Lopez), where courts
upheld gang conditions because the defendant had ties to a criminal street gang. The court noted, “I should also add it is a
known fact that gang members often sell narcotics to fund illegal activity in
the community, and they associate with other drug users. This would be a term imposed to help the defendant
with [probation].â€
Defendant objected again after the
trial court’s ruling. Specifically, he
objected to the statements in the report regarding his gang involvement. He emphasized that he had explicitly told the
probation officer he was not a gang member.
He also denied using the word “associate[s]†to describe his
relationship with the Norteño gang. Rather, defendant claimed he said “he had
people in his family and knew people that were gang members, but he never used
the word associate. That was the actual
term that probation used . . . .â€
3.
“We review conditions of probation
for abuse of discretion.
[Citations.] Generally, ‘[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.]’
[Citation.] This test is
conjunctive—all three prongs must be satisfied before a reviewing court will
invalidate a probation term. [Citations.]
As such, even if a condition of probation has no relationship to the
crime of which a defendant was convicted and involves conduct that is not
itself criminal, the condition is valid as long as the condition is reasonably
related to preventing future criminality.
[Citation.]†(
379-380.)
Defendant contends there was no
nexus between the gang conditions and preventing future criminality because his
offenses were not gang related, he denied being a gang member, 10 years had
elapsed since he had been subject to gang conditions as a juvenile, and the
same trial court did not impose gang conditions for his first offense (case No.
SS121770A).
Defendant compares this case to
568, 574 (Brandão), where this court considered whether a no-gang-contact probation
condition was “reasonably related to a risk that defendant will
reoffend.†As in this
case, the defendant in Brandão
pleaded no contest to possessing a controlled substance, and nothing in the
record indicated that the offense was gang related. (Id. at
pp. 570, 576.) However, in
that the defendant “had never been involved with any criminal street gangs, nor
did he have any family members who associated with such groups.†(Id.
trial court erred by imposing the challenged condition, because “the record divulge[d]
(1) no ties between defendant and any criminal street gang, (2) no such ties
involving any member of defendant’s family, and (3) no criminal history showing
or strongly suggesting a gang tie.†(Id.
at p. 576.)
Unlike
in Brandão, here the evidence supports
the trial court’s imposition of the gang conditions. On the night of his crimes, defendant was in
an area that was “frequented by
individuals selling drugs, as well as gang members.†At booking,
defendant asked to be housed with Norteño gang members because “he associates
because of his family ties and friends from the neighborhood.†Although defendant denied using the word
“associate[s],†he admitted “he
had people in his family and knew people that were gang members.†In addition, a juvenile court had previously
imposed limited gang conditions on defendant for a misdemeanor offense.
As the trial court recognized, this
case is similar to Lopez, supra,
imposition of gang terms on a defendant convicted of a non-gang-related crime. (Id. at
pp. 624-625.) The probation report
showed that the defendant had admitted gang membership, he was young (in his
early 20’s), and he had a lengthy history of juvenile and misdemeanor adult
offenses. (Id. at p. 626.) Based
on these facts, the trial court concluded that “ ‘[a]ssociation with gang members is the first
step of involvement in gang activity.’ â€
(Id. at p. 624.) Therefore,
“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,†thus serving to prevent future criminality. (Id. at p. 626.)
Defendant argues that this case is distinguishable
from Lopez because there, the
defendant admitted being an actual gang member.
(Lopez, supra, 66 Cal.App.4th
at p. 622.) However, the Lopez
court stressed that whether the defendant was a current gang member was not
“critical.†(Id. at p. 624.) Here, defendant had gang ties as he requested
to be placed in the Norteño gang housing and admitted having family and friends that were gang members. Furthermore, as in Lopez, defendant had a lengthy history of
juvenile and adult misdemeanor offenses, which shows a “consistent and
increasing pattern of criminal behavior.â€
(Id. at p. 626.) In fact, one of these prior offenses resulted in
the imposition of limited gang terms on defendant. Hence, the trial court was within its
discretion to impose gang conditions as “rehabilitation and public safety by
forbidding conduct reasonably related to future criminality. [Citation.]â€
(Ibid.)
B. Custody
Credit
Defendant
contends, and the Attorney General concedes, that he is entitled to additional
presentence credit in case No. SS121770A for the time he spent in custody for committing
the offenses in the second case (case No. SS122419A). We find the concession appropriate.
The
probation report states that in case No. SS12770A, defendant was in custody for
nine days, from September 16, 2012, to September 24, 2012. The report also states that he was in custody
for 44 days, from December 19, 2012, to January 31, 2013, which was
attributable to both cases: the probation
violation in case No. SS121770A and his offenses in case No. SS122419A.
At the sentencing
hearing, defendant argued that he was entitled to dual credit under
days of credit (9 days of actual custody credit plus 8 days of conduct credit) in
case No. SS12770A. The 44 days of
custody were credited only to case No. SS122419A.
“Penal Code section 2900.5 provides that a convicted
person shall receive credit against his [or her] sentence for all days spent in
custody, including presentence custody (subd. (a)), but ‘only where the
custody to be credited is attributable to proceedings related to the same
conduct for which the defendant has been convicted’ (subd. (b), italics
added).†(Bruner, supra, 9 Cal.4th at p. 1180.) Thus, if the time served for violating
probation was based solely on the same conduct that led to the later criminal
sentence, the defendant is entitled to presentence credit for the time served
for the probation violation. (People
v. Williams (1992) 10 Cal.App.4th 827, 834-835.)
The
record establishes that the time defendant served for violating probation was based
solely on the crimes for which he was convicted in case No. SS122419A, namely, possessing a controlled substance
and resisting arrest. Accordingly,
defendant was entitled to dual application of the 44 days in custody as presentence
credit in case No. SS121770A.
Therefore,
we determine that defendant is entitled to the following credit in case
No. SS121770A: 9 days of actual
custody credit and 8 days of conduct credit for the time spent in custody from
September 16, 2012, to September 24, 2012, plus 44 days
of actual custody credit and 44 days of conduct credit for the time spent in
custody from December 19, 2012, to January 31, 2013, for a total of 53
days of actual custody credit and 52 days of conduct credit. (Pen.
Code, § 4019, subds. (b), (c), (f).)
DISPOSITION
In case No. SS121770A, the judgment is
modified to reflect that defendant is entitled to 105 days of credit (53 days
of actual custody credit and 52 days of conduct credit). As modified, the judgment is affirmed.
___________________________________________
Bamattre-Manoukian, ACTING P.J.
WE CONCUR:
__________________________
Márquez, J.
__________________________
GROVER, J.
name="_ftn1" title=""> [1] The factual background is based on the probation report.
