P. v. Silva
Filed 4/19/13 P. v. Silva 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opinion has not been certified for publication or ordered published for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.
CHRISTOPHER JOSEPH SILVA,
Defendant and
Appellant.
H038146
(Monterey
County
Super. Ct.
No. SSC110091)
Defendant
Christopher Joseph Silva pleaded guilty to possession
of methamphetamine (Health & Saf. Code, §
11377, subd. (a)) pursuant to a plea
agreement. Following defendant’s
completion of a residential drug treatment
program, the trial court suspended imposition of sentence and placed
defendant on probation for three years.
On appeal, defendant contends that the trial court erred by imposing
gang-related probation conditions. We
conclude that some of the probation conditions must be modified. As modified, the order is affirmed.
In April
2011, defendant was a passenger in a car that was stopped for a traffic
violation in King City. At that time,
defendant was on probation for receiving stolen property (Pen. Code, § 496, subd. (a)), driving under the
influence of alcohol or drugs (Veh. Code, §
23152, subd. (b)), and driving with a suspended license (Veh. Code, § 14601.5, subd. (a)). After defendant was arrested for an
unspecified violation of probation, he told the officer that he had a small
bindle of methamphetamine in his sock.
In May
2011, defendant was charged with transportation of methamphetamine (Health
& Saf. Code, § 11379, subd.
(a)). In October 2011, the complaint was
amended to add a count of possession of methamphetamine (Health & Saf.
Code, § 11377, subd. (a)). Defendant then pleaded guilty to possession
of methamphetamine in exchange for a promise of probation, dismissal of the
original charge, and consideration for treatment under the provisions of
Proposition 36.
About a
week later, defendant was found ineligible for Proposition 36, but eligible for
drug treatment court. In November 2011,
defendant was accepted into a drug treatment program, and to remain in custody
until a place was available for him in a residential facility. Gang-related probation conditions which had
been previously imposed as a condition of “OR†release were continued.
Defendant
successfully completed the Sun Street Residential Program and complied with the
terms of drug treatment court.
In April
2012, the trial court suspended imposition of sentence and placed defendant on
probation for three years. Over a
defense objection, the trial court imposed several
Defendant
contends that the gang-related probation conditions must be stricken because
they require or forbid conduct that is not reasonably related to future
criminality.
The
probation report recommended imposition of gang-related probation
conditions. The basis for this
recommendation was as follows: “The
defendant has claimed to not associate with any gang. However, Salinas Police Report #09-040326
noted his association with an individual who had gang-related tattoos and who
admitted to being a Norteno from King City.
When the defendant was booked into the Monterey County Jail, he was
classified as a Norteno and placed in the active Norteno pod.â€
At the
sentencing hearing, defense counsel objected to the imposition of gang-related
probation conditions. He first noted
that the drug treatment court had determined that defendant was not an active
gang member. He also acknowledged that
though the police report in 2009 referred to gang involvement, defendant
ultimately pleaded guilty in that case to misdemeanor possession of stolen
property with no gang allegations. He
argued that defendant’s association with a Norteno gang member when he was
arrested did not imply that he was a gang member. He further argued that gang-related probation
conditions were unnecessary because the drug treatment court would terminate
him from the program if it thought he was participating in any gang
activity.
The
prosecutor argued that defendant’s tattoos indicated gang association, he was
placed in a Norteno pod in jail, his girlfriend was on probation with “full
gang terms,†and the court had previously imposed gang-related conditions when
it released defendant on his own recognizance.
Defense
counsel responded that defendant had broken up with his girlfriend and had not
been involved with her since he had been in drug treatment court. He also noted that defendant’s tattoos were
his last name and the letter “K,†and neither were gang tattoos.
The trial
court noted that there had been a gang issue in one of defendant’s prior cases
when defendant wore red in court and to the drug treatment program. The trial court then imposed gang-related
conditions Nos. 18, 19, 21, and 22 as requested by the probation officer. These conditions state: (18) “Not be present in any [area you] know,
suspect or are told by the Probation [Officer] to be [a] gang-gathering area,â€
(19) “Not associate with any individuals you know or are told by the Probation
Officer to be gang members . . . ,†(21) “Not possess, wear, use or display any
item you know, suspect, 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 color
red/blue,†and (22) “Do not obtain any new gang related tattooing upon your
person while on probation supervision.
Defendant shall permit photographing of any tattoos on person by law
enforcement.â€
“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,
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.]â€
(People v. Olguin (2008) 45
Cal.4th 375, 379-380.)
Defendant
argues that “there is an insufficient nexus between the prohibited conduct and
the goal of deterring criminal conduct.â€
In
568, this court recently considered whether a no-gang-contact probation
condition was “reasonably related to
a risk that defendant will reoffend.†(Id.
at p. 574.) This
court held that the 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.†(
Unlike in
defendant and a criminal street gang.
Defendant had previously engaged in criminal activity with a Norteno
gang member and he was housed in the active Norteno pod in jail. He had also been involved recently with a
woman who was subject to gang-related probation conditions. Moreover, as the trial court commented, there
had been a gang issue in one of defendant’s prior cases when he wore red in
court and to the drug treatment program.
Thus, the gang-related probation conditions were reasonably related to a
risk that defendant would reoffend.
Defendant
also contends, and the Attorney General concedes, that the word “suspect†in
probation conditions Nos. 18, 19, 20, and 21 is unconstitutionally vague.
court explained in People v. Gabriel (2010) 189 Cal.App.4th 1070 (Gabriel), “[t]o ‘suspect’ is ‘to imagine (one) to be guilty or
culpable on slight evidence or without proof’ or ‘to imagine to exist or be
true, likely, or probable.’
(Merriam-Webster’s Collegiate Dict. (10th ed.1999) p. 1187 (Webster’s).) To ‘imagine’ is ‘to form a notion of without
sufficient basis.’ (Webster’s, at
p. 578.) Given this lack of specificity,
the word ‘suspect’ fails to provide defendant with adequate notice of what is
expected of him when he lacks actual knowledge that a person is a gang member,
drug user, or on probation or parole.
Moreover, inclusion of this word renders the condition insufficiently
precise for a court to determine whether a violation has occurred.†(Gabriel, at p. 1073.)
Condition No. 19 is
identical to the probation condition at issue in Gabriel, and thus it must be modified. The same rationale applies to probation
condition Nos. 18, 20, and 21. Thus,
each of these probation conditions must be modified to delete the word
“suspect.â€
The
following probation conditions are modified to read: (18) “Not be present in any area you know or
are told by the Probation Officer to be a gang-gathering area,†(19) “Not
associate with any individuals you know or are told by the Probation Officer to
be gang members . . . ,†(20) “Not remain in any vehicle either as a passenger
or driver which you know to be stolen or to contain any firearms or illegal
weapon,†and (21) “Not possess, wear, use or display any item you 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 color red/blue.†As modified, the order is affirmed.
_______________________________
Mihara,
J.
WE CONCUR:
______________________________
Premo,
Acting P. J.
______________________________
Grover, J.
name="_ftn1" title="">[1] The
bracketed portions of this condition are from the probation officer’s
recommendation as to this condition. It
appears that the omissions from the minute order as to these parts of the order
are typographical errors.
name="_ftn2" title="">[2] There
is some ambiguity as to probation condition No. 19. As set forth in the probation report, it
contains the verb “suspect.†However, as
described in the minute order, it does not.
At the sentencing hearing, the trial court referred to “19.†For the sake of clarity, we include
defendant’s challenge to the condition as stated in the probation report.
