P. v. Ware

 

 

 

 

 

 

 

 

 

Filed 9/20/13  P. v. Ware CA2/8

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

SECOND
APPELLATE DISTRICT

 

DIVISION
EIGHT

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   GREGORY WARE,               Defendant and Appellant.

B242597         (Los Angeles County       Super. Ct. No. BA389488)

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  Victor H.
Greenberg.  Affirmed.

 

Lenore De Vita, under appointment
by the Court of Appeal, for Defendant and Appellant.

 

Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, James William Bilderback II, and Peggy Z. Huang, Deputy
Attorneys General, for Plaintiff and Respondent.

 

* * * * * * * * * *

 

 

Defendant Gregory Ware appeals from
the judgment entered following a jury trial that resulted in his misdemeanor
conviction of failure to disclose the origin of a recording or audiovisual work
(Pen. Code, § 653w, subd. (a); count 1).href="#_ftn1" name="_ftnref1" title="">>>[1]>  The trial court suspended imposition of
sentence and placed defendant on probation for three years under certain terms
and conditions, including the condition he stay away from the 5th Street
corridor in Los Angeles.href="#_ftn2"
name="_ftnref2" title="">[2] 

            On appeal, defendant
contends this “stay-away” order is unauthorized, unlawful, and a violation of
his “federal and state constitutional rights to travel and freedom of movement,
speech, association, and assembly.”  He
contends his attorney was ineffective for failing to object on these constitutional
grounds.

            We shall
affirm the judgment.  The “stay-away” order
is not constitutionally infirm.  Defendant’s
counsel therefore was not ineffective for not objecting on those grounds.      

BACKGROUND

            The area
bounded by 3rd Street to 7th
Street and from Spring Street to San
Pedro Street is known as “the 5th
Street corridor.” 
Deon Joseph served as a Los Angeles
police officer for about 14 years in the 5th Street
corridor, which is “a rehabilitative recovery zone” and “actually stretches all
the way to Central Avenue.”  

            During this
time, almost on a daily basis, Officer Joseph came upon DVD’s which, based on
his training and experience, were pirated, and he had observed street sales of
pirated DVD’s “[h]undreds of times.”  A
street vendor commonly spread out the DVD’s “on the sidewalk for everyone to
see” in a suitcase, a box, or on a blanket. 
A sale transpired when someone approached, pointed to a DVD, and the
vendor exchanged cash for the DVD.   

            Officer Joseph
knew defendant for about seven years.  He
saw him once or twice a week making street sales of various merchandise,
including pirated DVD’s, typically around San Julian Park.  Defendant loitered in the park and on the
sidewalk directly in front of the park.  Officer
Joseph had warned defendant to stop dozens, maybe hundreds, of times, in an
attempt to get his voluntary compliance. 
Although defendant would pack up and leave, Officer Joseph would see defendant
return.  Once in 2006 or 2007, Officer Joseph
gave defendant a ticket.   

            On
September 30, 2011, about 3:30 p.m., while on vehicle patrol and in uniform, Officer
Joseph saw defendant standing next to a suitcase on the sidewalk of 5th Street
near San Julian Park.  The suitcase was
wide open, and stacked “on full display” were what Officer Joseph believed were
pirated DVD’s for sale.  When a woman
walked up and asked how much they were, defendant took a few steps towards her,
looked back in Officer Joseph’s direction, and closed the suitcase.  Defendant told Officer Joseph the DVD’s were
not his and he was not selling them.  He
then admitted he had sold a couple while waiting for a friend to pick him up.  Officer Joseph arrested defendant and
confiscated the suitcase, which contained 100 pirated DVD’s. 

            On October
31, 2011, at the preliminary hearing, the magistrate denied defendant’s motion
to dismiss the complaint or, alternatively, to reduce the charge to a
misdemeanor.  After noting defendant did
not reside in the 5th Street corridor area, he ordered defendant “to stay away
from the Fifth Street corridor area and . . . not [to] engage in the sale of
any illegal or pirated DVD’s during the pendency of this action.”  Defendant agreed to comply.  

            On November
28, 2011, Officer Joseph observed numerous DVD’s or CD’s on a blanket at about the
same location where defendant’s open suitcase had been when he was arrested on
September 30.  A few seconds later, defendant
exited San Julian Park.  He wrapped the
items with the blanket, placed the blanket inside a tote bag, and walked
towards the park about two feet away. 
When Officer Joseph called out his name, defendant gave a “quick glance,”
put down the bag, and entered the park.  At
Officer Joseph’s directive, defendant exited the park and was arrested based on
the DVD’s on the blanket and for violating the court order to stay away from
that area.  The 35 confiscated DVD’s were
pirated.href="#_ftn3" name="_ftnref3" title="">[3] 

            At trial, defendant
presented evidence that he possessed pirated DVD’s for his own viewing and on
September 30, 2011, he was waiting for an individual who was to help him move his
things to his Compton residence, and that was the reason why he had the
suitcase with the pirated DVD’s.  Defendant
testified he did not sell pirated DVD’s; rather, he only sold second-hand original
DVD’s, occasionally.  He admitted having
multiple prior contacts with Officer Joseph on 6th and San Pedro Streets.  On September 30, 2011, he told Officer Joseph
he was not selling anything.  He denied
telling Officer Joseph he had sold a few DVD’s that morning or that he sold
pirated DVD’s.  Defendant denied he was
selling anything on November 28, 2011.  Defendant
admitted selling illegal DVD’s before these two arrests but denied he sold them
on the days of his arrests. 

            In a
tape-recorded police interview, defendant told Officer Joseph he sold “bootleg”
DVD’s.  Defendant testified he was afraid
and misspoke. 

                The jury found defendant
guilty of the charged offense but not true the allegation the offense involved
at least 100 articles each of audio recordings and audio visual works (§ 653w,
subd. (b)(1)).  The trial court ruled the
information was deemed amended to plead count 1 as a misdemeanor (§ 17, subd.
(b)).   

            On May 24,
2012, the trial court suspended imposition of sentence and placed defendant on
probation for a three-year period under certain terms and conditions.  At the hearing, defendant’s counsel objected
to a “stay-away” probation condition as premature, because defendant had an
appointment with a doctor in the area and defendant’s medical issues had not
yet been resolved nor had “another doctor . . . been located and assigned
to him outside of the restricted area.” 
The court ordered defendant “to stay away from the 5th Street corridor[,
which is] bounded by 3rd Street to 7th Street and Spring to San Pedro.”  The court tentatively ruled defendant would
be allowed “to be in the area in the afternoon of June 24th, only, to meet with
[his] doctor, discuss [his] condition with [the doctor], and also to get an
additional referral” but, after a discussion with counsel, some of which was
off the record, the court ordered defendant to appear in court on May 30 with a
letter from his doctor regarding a referral outside the 5th Street Corridor
area.    

            On May 30,
2012, the court modified the “stay-away” order to allow defendant to be in the 5th
Street corridor only on the two dates when he had scheduled medical
appointments, on July 2, 2012, from 7:00 a.m. until noon and on July 9, 2012,
from 1:00 p.m. until 4:00 p.m.  The
court ordered defendant to leave the area on those dates upon completing his medical
appointments.  The court admonished defendant
this did not “mean that if you see someone that you know you can’t say ‘hi’ as
you walk by.  But you need to keep
moving.  The bottom line is going to be,
if I find out . . . your blood was drawn right at 8:00 and you’re found in the
area after at 11:00, then I am going to wonder why you’ve been there for three
hours and we are going to have a problem.” 
The court provided defendant with a copy of the minute order so he could
show it to his medical provider, to demonstrate an out-of-area referral was a
condition of probation and to help him get a prompt referral to another clinic
outside the area.   

            The court
further admonished defendant to contact his doctor by phone to see if he could
get a referral before the dates of his July appointments.  Defendant’s attorney advised the court that defendant
was on general relief and had to be in the area to see his case worker.  The prosecutor responded defendant “just got
this eligibility worker” and he could switch to another over the phone.  After noting defendant “is not allowed to see
his eligibility worker without having an appointment phoned in first,” the
court directed defendant to call to obtain an eligibility worker outside that
area. 

            On July 10,
2012, the trial court continued the matter to September 6, 2012, as to defendant’s
quest to find a doctor and program outside the restricted area. 

            On July 12,
2012, defendant filed his notice of appeal from the judgment. 

DISCUSSION

1.         No
Ineffective Assistance of Counsel Shown    

            Although defendant
acknowledges he did not object to the “stay-away” probation condition on
constitutional grounds, he contends the constitutionality of this condition is
properly before this court, because his counsel was ineffective for failing to
object on these grounds. He has failed to meet his burden.

            “ ‘The burden of sustaining a charge
of inadequate or ineffective representation is upon the defendant.  The proof . . . must be a demonstrable reality
and not a speculative matter.’  [Citation.]”
 (People
v. Karis (1988) 46 Cal.3d 612, 656.)  â€œ ‘To prevail on a claim of ineffective assistance
of counsel, defendant “must establish not only deficient performance, i.e.,
representation below an objective standard of reasonableness, but also
resultant prejudice.” ’  [Citation.]  Prejudice occurs only if the record
demonstrates ‘a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’  [Citation.]”  (People
v. Lucero (2000) 23 Cal.4th 692, 728.)

            “We need not and do not
determine whether [defendant] established the first prong, deficient
performance, because we conclude . . . even if counsel’s performance was
deficient, [defendant] has failed to sustain his burden on the issue of
prejudice.  [Citation.]”  (>In re Alvernaz (1992) 2 Cal.4th 924,
945; see also Strickland v. Washington (1984) 466 U.S. 668, 697.) 
As we shall explain, a result more favorable to defendant would not have
been reasonably probable if his counsel had objected on the constitutional grounds
raised in this appeal.  (See also >People v. Torrez (1995) 31 Cal.App.4th
1084, 1091 [counsel “not required to make futile motions or to indulge in idle
acts to appear competent”].)

2.         “Stay-Away” Probation Condition Not Unconstitutional   

            Defendant
contends the “stay-away” condition constitutes a banishment in violation of his
“federal and state constitutional rights to travel and freedom of movement,
speech, association, and assembly.”href="#_ftn4"
name="_ftnref4" title="">[4]  No
constitutional infirmity exists.

            “name=B31993115154>The sentencing court has broad
discretion to determine whether an eligible defendant is suitable for probation
and what conditions should be imposed.  [Citations.]
 name="citeas((Cite_as:_5_Cal.4th_228,_*233,_85">. . .  Most conditions . . . stem from the
sentencing court’s general authority to impose any ‘reasonable’ condition that
it ‘may determine’ is ‘fitting and proper to the end that justice may be done.
. . .’  [Citation.]”  (People
v. Welch, supra, 5 Cal.4th at p. 233.) 
The
court is authorized to “prescribe name="SR;1583">probation conditions in order to
foster rehabilitation and to protect public safety.  [Citations.] 
However, probation conditions
may be challenged on the grounds of unconstitutional
vagueness and overbreadth.  [Citation.]  A probation name="SR;1644">condition may be ‘overbroad’ if in its reach it prohibits
constitutionally protected conduct.  [Citation.]”  (People
v. Freitas (2009) 179 Cal.App.4th 747, 750.)

            Defendant’s
overbreadth challenge is unsuccessful.  “Conditions
of banishment affect the probationer’s basic constitutional rights of freedom
of travel, association and assembly. 
[Citations.]  Thus, in order to
survive constitutional scrutiny, such conditions not only must be reasonably
related to present or future criminality, but also must be narrowly drawn and
specifically tailored to the individual probationer.”  (In re
Babak S. (1993) 18 Cal.App.4th 1077, 1084.)  The “stay-away”
probation condition crafted by the trial court is reasonably related to the
offense he committed and is narrowly drafted to avoid impingement on defendant’s
constitutional rights at issue, i.e., “to travel and freedom of movement,
speech, association, and assembly.” 

            The court
ordered defendant “to stay away from the 5th Street corridor[, which is]
bounded by 3rd Street to 7th Street and Spring to San Pedro.”  During the preceding seven years, Officer Joseph
had observed defendant in this area, once or twice a week, selling pirated DVD’s.  Despite Officer Joseph’s repeated warnings
and a ticket for such unlawful activity, defendant was incorrigible.  Although appearing to comply with Officer
Joseph’s directive to stop selling and leave, he would return later.  Defendant admitted he knew his selling of
pirated (bootlegged) DVD’s was unlawful. 
On September 30, 2011, upon spotting Officer Joseph, defendant made a
furtive attempt to hide his illegal sale activity by closing his suitcase with
the pirated DVD’s.  At the preliminary
hearing, the magistrate ordered him to stay away from the 5th Street corridor
and not to sell pirated DVD’s.  Defendant
agreed to comply.  Instead, on November
28, 2011, less than two months after his arrest on September 30 and less than a
month after that order, defendant resumed his unlawful sale of pirated DVD’s at
almost the exact spot where his suitcase had been located when he was arrested
by Officer Joseph. 

            In view of
the above, the trial court was entitled to conclude defendant would continue
such recidivist criminal behavior
unless defendant’s presence was prohibited in the 5th Street corridor area.  This area is identified in specific detail
and its particular borders are narrowly drawn to conform to the general area of
defendant’s crimes.  Defendant’s
constitutional rights to speech, association, and assembly were not impinged by
the challenged “stay-away” order.  The
“stay-away” order only prohibits defendant’s exercise of his right to speech,
association, and assembly in a specific, limited area, which restriction is
reasonably related to further defendant’s rehabilitation and to reign in his
proclivity to crime.  (See >In re Ramon M.
(2009) 178 Cal.App.4th 665, 678 [probation condition that the defendant refrain
from being present in known gang gathering areas of Barrio Pobre as directed by
his probation officer closely tailored to further goal of keeping probationer
out of gang activity and not overbroad as interfering with his ability to visit
his daughter and impermissibly delegating his right to travel to the probation
officer].)   

            Moreover, probation
conditions that otherwise might be deemed overbroad “will pass muster if
tailored to fit the individual probationer. 
[Citation.]”  (In re Pedro Q.
(1989) 209 Cal.App.3d 1368, 1373.)  It is
undisputed that defendant did not live in the 5th Street corridor area.  Prohibiting defendant’s presence in the 5th Street
corridor area therefore does not prevent him from traveling to and from his
home.  (Ibid. [restriction on
travel to gang territory might be proper for a minor living outside the gang’s
territory but overbroad for a minor “who name="citeas((Cite_as:_40_Cal.4th_875,_*886,_1">lives, works, or goes to
school within that area”].)

            Defendant
contends that if the “stay-away” order is not per se unconstitutional, this
court nonetheless should modify the order to allow him “to enter the area for
purposes of continuing his medical care and visiting his eligibility worker,
[because] both are located within the banned zone.”  His contentions are unsupported by the record. 

            The trial
court did not, contrary to his claim, “impose[] the stay-away order without
limitation prohibiting defendant’s mere presence in the area at any time for
any reason.”  The record reflects the
court’s willingness to modify the original “stay-away” order to accommodate defendant’s
medical needs. 

            The order
expressly allowed defendant “to be in the 5th Street corridor . . . on July 2,
2012 from . . . 7:00 a.m. until noon and on 07-09-12, from 1:00 p.m.
until 4:00 p.m.”  The trial court
did not completely refuse to allow him to see his doctor or have laboratory
work performed in that area.  Also, the
court did not absolutely bar him from seeing his case worker in that area, but
directed that he phone for an appointment first and initiate attempts to obtain
a case worker outside the area. 
Additionally, defendant has pointed to no evidence in the record that he
was unable to obtain medical assistance or a replacement for his eligibility
worker outside the restricted area after July 10, 2012, the date of the
last court hearing reflected in the record on appeal. 

>DISPOSITION

            The judgment is affirmed. 


 

 

                                                                                                GRIMES,
J.

We concur:

 

                        RUBIN, Acting P. J.

 

 

                        FLIER, J.