P. v.
Filed 3/15/13 P. v. Medina CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Butte)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
MIGUEL MEDINA,
Defendant and Appellant.
C069022
(Super. Ct. No.
CM031872)
Defendant
Miguel Medina pleaded guilty to assault by
means likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).)
and gang (§ 186.22, subd. (b)(1)) enhancements were dismissed with a
Defendant
was placed on three years’ formal probation, subject to various conditions
including that he not associate with known gang members or persons known to be
associated with a gang. Defendant was
also required to register as a gang member.
The trial
court later revoked probation following a contested hearing at which it found
defendant violated the gang association condition. The trial court sentenced defendant to three
years in state prison.
On appeal,
defendant contends the probation condition prohibiting him from associating
with any individual associated with a gang is unconstitutionally vague. He also contends there is
trial court’s finding that he violated this condition. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Crime
On November 9, 2009, defendant, codefendant
David Guzman, and a third person ran out of a van and attacked two
juveniles. One victim, E.R., was knocked
to the ground and kicked in the head and body until he was rigid and
unconscious. The other victim, M.R., was
punched in the head and knocked to the ground when he tried to intervene. The attack did not stop until other people
came to the victims’ aid. The assailants
“ ‘threw . . . a gang sign, an N for Norte[ñ]o,’ †as they left in
the van.
E.R.
sustained a skull fracture and could not remember the assault. M.R. did not want to talk to the police in
front of other people. When they were
alone, he told the officer that prior to the van’s stopping, the assailants
yelled the word “ ‘Scrap,’ †a slur used by Norteños against members of the
rival Sureño gang, at them. Both victims
associated and identified with the Sureño gang.
The van
belonged to codefendant’s cousin Gregorio Garcia Guzman, a documented Norteño
member.
The Probation
Conditions
The trial
court imposed the following probation condition: “The defendant SHALL NOT: Be a member of any gang; and SHALL NOT
associate personally or in writing, nor communicate directly or indirectly,
with any person known by the defendant to be associated with, or a member of,
any gang.†Defendant did not object to
the condition. Defendant was also
required to register as a gang member.
The Violation Hearing
The
following evidence was taken at the contested hearing on the petition alleging
defendant’s probation violation.
Gridley
Police Officer Scott Smallwood was the department’s lead gang
investigator. On August 25, 2010, Officer Smallwood saw
defendant at the Butte County Fair, where he was talking with Tyrone Garcia,
Augustine Garcia, Edgar Garcia, and Ricardo Castanada.
Edgar, and Augustine (who are brothers) were associates of the Norteño
gang. Castanada was a Norteño gang
member.
Officer
Smallwood, who knew defendant was on probation with a gang condition, told
defendant he was violating his probation by being in contact with the Garcias
and Castanada. He advised defendant that
he would report the matter to the probation officer, and asked defendant to
leave the fairgrounds.
On
September 2, 2010, Officer Smallwood was at the Garcia residence with
immigration officials in regard to the Garcia family’s association with Alvaro
Velasquez, a known Norteño gang member who was about to be deported. Jose Vallejo (a known Norteño member) was at
the residence, as well as Augustine Garcia and Tyrone Garcia. Later, Officer Smallwood saw defendant and
Edgar Garcia approaching the residence together. Officer Smallwood reminded defendant he had
previously told him not to associate with the Garcias due to their gang
associations.
Officer
Smallwood testified about a prior gang-related incident involving Edgar
Garcia. On March 17, 2010, Edgar
Garcia and a known Norteño named Oscar Rivera were walking to Gridley High
School when they met Roberto Gomez, a known Sureño associate. Garcia and Rivera tried to taunt Gomez into
fighting them. One of the terms they
used was “scrap.†In 2010 Edgar Garcia
was in a car stopped for a traffic violation.
His brother Tyrone Garcia was driving; a Norteño associate and a Norteño
member were the other passengers. In the
car was a compact disc that had the initials “E-S-C†written on it in red,
representing the East Side Campos, a Norteño gang in Gridley.
Edgar
Garcia testified that defendant was his lifelong friend. Neither he nor his brothers were gang members
or associates. The school resource
officer never told him that he and defendant could not be together. A police officer who lived near him and had
seen him and defendant together never said they could not associate. The assistant police chief saw them together
but never said they could not be together.
Officer Smallwood saw them together before seeing them at the fair and
never said they could not be together.
Defendant did not say anything to Castanada when Castanada walked up to
them at the fair.
According
to defendant, he was good friends with Edgar Garcia and they spent a lot of
time together. Neither the school
resource officer, the assistant police chief, Officer Smallwood, nor two other
officers who saw defendant with Edgar Garcia said that they could not associate
with each other because of defendant’s probation condition. Between the time he was placed on probation,
June 30, 2010, and the incident at the fair, August 25, 2010, Officer
Smallwood had seen defendant with Edgar Garcia and never told them this
violated the probation condition.
When
Castanada walked toward defendant at the state fair, defendant told Castanada
that he could not associate with him because of his probation condition. He related this to Officer Smallwood when
they met; the officer replied that he should not be with Edgar Garcia because
he was a gang associate. Defendant told
Officer Smallwood that the Garcia brothers were not gang members and he did not
have anything to do with gangs. He then
left the fair with his sister.
Defendant
denied being a gang member or being involved with a gang in any way.
DISCUSSION
I
Defendant
contends his probation violation should be reversed because the condition not
to “ ‘associate . . . with any person you know to be associated with
any criminal street gang’ †is unconstitutionally vague. Defendant’s argument focuses on the term
“associated,†which he claims “is susceptible to many interpretations, and
therefore is vague.†According to
defendant, this term is impermissibly vague because, in the context of the
probation condition, it “is dependent upon an analysis of the amount of time,
or frequency, with which an associate of [defendant] hangs out with a gang
member.†Since the frequency of
association that defendant alleges is necessary is not spelled out in the
probation conditions, defendant concludes that it is unconstitutional. We disagree.
To
withstand a challenge on the ground of vagueness, a probation condition must be
sufficiently precise for the probationer to know what is required of him. (Sheena
K., supra, 40 Cal.4th at p. 890.)
“Two principles guide the evaluation of whether a law
or . . . probation condition[] is unconstitutionally vague. First, ‘abstract legal commands must be
applied in a specific context. A contextual application of otherwise
unqualified legal language may supply the clue to a law’s meaning, giving
facially standardless language a constitutionally sufficient
concreteness.’ [Citation.] Second, only reasonable specificity is
required. [Citation.] Thus, a statute ‘will not be held void for
vagueness “if any reasonable and practical construction can be given its
language or if its terms may be made reasonably certain by reference to other
definable sources.†’ [Citation.]†(People v.
Lopez (1998) 66 Cal.App.4th 615, 630.)
Where the terms of a statute or condition of probation have a reasonably
understood meaning, the condition is not vague.
(People v. Rodriquez (1975) 50
Cal.App.3d 389, 398.)
“Associateâ€
is a common term, defined as: “1 : to join as a partner, friend, or
companion.†(Merriam Webster’s
Collegiate Dict. (11th ed. 2006) p.
75.) So long as the probation condition
contains a knowledge requirement, limitations on association are not
unconstitutionally vague. (See,
e.g., Sheena K., supra, 40 Cal.4th at pp. 890-891, 892 [condition that
defendant not associate with anyone disapproved by probation vague without
knowledge requirement; condition modified to add knowledge requirement];
Cal.App.4th 902, 911-912 [same]; People
v. Gabriel (2010) 189 Cal.App.4th 1070, 1072-1073 [condition to “
‘[n]ot associate with any individuals
you know or suspect to be gang members, drugs users, or on any form of
probation or parole supervision’ †vague because “suspect†insufficiently
precise to provide adequate notice of expected behavior; condition modified to
remove term].)
“Associateâ€
and “associated†are common terms with readily understood meanings. A person of average intelligence would know
that the condition does not prohibit a mere casual contact with a known gang
member or associate. Rather, it
prohibits friendship or companionship with such a person. While not mathematically precise, such precision
is not necessary for a probation condition.
Limits on association with the knowledge requirement are reasonably
precise and therefore not vague. Such is
the case here.
title="">[5]
II
Defendant
contends there is insufficient evidence to support the trial court’s finding
that he violated his probation condition to not associate with known gang
members or gang associates.
Trial
courts have very broad discretion in determining probation violations, and only
in extreme cases should an appellate court interfere with the discretion of the
trial court. (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) Proof that a probationer has violated the
conditions of probation need be made only by a preponderance of the
evidence. (Id. at p. 442.)
On appeal,
we consider “whether, upon review of the entire record, there is substantial
evidence of solid value, contradicted or uncontradicted, which will support the
trial court’s decision[,] . . . giv[ing] great deference to the trial court and
resolv[ing] all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be
resolved in favor of the decision.†(
840, 848-849, fns. omitted.)
Defendant
argued there was only one “extremely ephemeral†documented instance of Edgar
Garcia’s associating with a gang member, the April 3, 2010, traffic stop of the
car driven by his brother Tyrone, in which a known gang member and gang
associate were present.
Defendant’s
argument overlooks the considerable other evidence showing that defendant
violated his gang condition. Edgar
Garcia and a known Norteño member tried to taunt an associate of the rival
Sureños by calling him a “scrap,†a Norteño slur for a Sureño. Defendant’s contention that this term “is
most likely widely known in the community,†and that “[i]t is commonplace for a
teenager’s vocabulary to include all manner of derogatory words,†asks us to
ignore reasonable inferences supporting the judgment. While trial counsel could reasonably argue
these inferences to the trial court at the probation violation hearing, the
trial court could still reasonably conclude that use of an insult specific to
the Norteño gang is evidence of association with that gang.
In his
reply brief, defendant contends that some of the strongest evidence of gang
association—Officer Smallwood’s testimony about defendant’s gang
associations—is inadmissible hearsay and the officer never qualified as an
expert. Defendant did not object to
Officer Smallwood’s testimony as hearsay or that he was qualified as an expert. His contention is thus forfeited on
appeal. (People v. Doolin (2009) 45 Cal.4th 390, 438.) We additionally note that Officer Smallwood’s
testimony related background that could have qualified him as an expert had
defendant made such a challenge—Officer Smallwood was the lead gang
investigator for the Gridley Police Department; his job included staying
apprised of all gang information in the city, as well as Butte and Sutter
counties. He had been part of the gang
unit for five years and one of the department’s gang experts for the last
three; had testified as a gang expert on more than one occasion; had reviewed
gang-related reports, investigated gang-related crimes, taken three or four
basic gang classes, and received advanced gang training; and attended regular
regional meetings on gang information.
In light of
Officer Smallwood’s credentials, the trial court could reasonably rely on his
opinion that the Garcia brothers were Norteño gang associates and that the
individual seen with defendant at the fair was a Norteño member, and that
Castanada and Vallejo were Norteño gang members. Given defendant’s frequent association with
Edgar Garcia, the fact that he was told at the state fair he was associating
with gang members or associates, and that he nonetheless continued to associate
with them, substantial evidence supports the finding that defendant violated
the gang association condition.
DISPOSITION
The
judgment is affirmed.
RAYE , P. J.
We concur:
NICHOLSON , J.
DUARTE , J.
name="_ftn1" title="">[1] Subsequent undesignated statutory references
are to the Penal Code.
name="_ftn2" title="">[2] People v.
Harvey (1979) 25 Cal.3d 754.
