P. v. Catalan























Filed 1/15/13 P.
v. Catalan CA6

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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SIXTH APPELLATE DISTRICT




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THE PEOPLE, Plaintiff and Respondent, v. RAUL CATALAN, Defendant and Appellant.

H037596 (Monterey County Super. Ct. No. SS101688)

Defendant Raul Catalan appeals from
an order reinstating probation. His sole
complaint is that the trial court deviated impermissibly from the directive of
this court, in a previous appeal, modifying a condition of probation limiting
defendant’s freedom to attend court proceedings. We find no error, and affirm.

Background

Defendant pled no contest to
carrying a concealed firearm (Pen. Code, § 12025, subd. (a)(2)) and misdemeanor
participation in a criminal street gang
(Pen. Code, § 186.22, subd. (a)), and admitted that he was not the
registered owner of the firearm (Pen. Code, § 12025, subd. (b)(6)). The trial court placed him on probation. On appeal he contended that certain href="http://www.mcmillanlaw.com/">gang-related provisions were
overbroad. (See People v. Catalan (Jul. 19, 2011, H036000) [nonpub. opn.] (>Catalan I).) Another panel of this court agreed with some
of these contentions and modified the challenged conditions accordingly. (Id.,
[pp. 6-10].) As pertinent here, the
court held overbroad a condition prohibiting his presence in and around
criminal courthouses except where he himself had court business or the
permission of his probation officer. (>Id., [p. 15].) The court directed a modification to state,
“You shall not be present at any criminal court proceeding that you know or
reasonably should know involves either criminal street gang charges or a person
associated with a criminal street gang (as defined in Penal Code section
186.22) as a member or witness, unless you are scheduled for a court hearing,
have the express permission of your probation officer, or have other lawful
business with the court or county administration.” (Id.,
[p. 16].)

On remand the trial court imposed
the condition as modified, except that it struck the word “member” and replaced
it with “party,” as follows: “You shall
not be present at any criminal court proceeding that you know or reasonably
should know involves either criminal street gang charges or a person associated
with a criminal street gang (as defined in Penal Code section 186.22) as a member
party or witness, unless you are
scheduled for a court hearing, have the express permission of your probation
officer, or have other lawful business with the court or county
administration.”

Defendant brought this href="http://www.fearnotlaw.com/">timely appeal.

Discussion

Defendant’s sole contention on
appeal is that the trial court impermissibly departed from this court’s mandate
in Catalan I by adopting language
that diverged from the court’s directions.
We find no error; the trial court’s alteration was entirely sound.

The indisputable intent of the
subject probation condition, as modified in Catalan I,
was to limit defendant’s freedom to attend criminal proceedings involving a
specified subject matter (gang charges), or specified persons (gang members or
associates). The condition was
ambiguous, however, because the phrase “as a member or witness” might modify
either the immediately preceding phrase “person associated with a criminal
gang,” or the slightly more remote phrase “proceeding that . . .
involves.” Defendant’s argument supposes
that the court intended the former of these interpretations, but we are
confident that the trial court was correct in concluding that the court
intended the latter. The adverbial
phrase “as a member or witness” modifies “involves” and not “associated.”

This conclusion flows, first, from
the logical effect of the inclusion of “witness” in the phrase under
scrutiny. Defendant’s reading
contemplates situations where a person is “associated with a criminal gang . . .
as a . . . witness.” We are
unable to conceive of any real-world circumstances in which this phrase could
have any application. The noun “witness”
has little if any practical application outside of judicial or similar
proceedings. Certainly it has no
apparent application to the operations of criminal street gangs. This strongly suggests that the phrase
“member or witness” refers to “proceeding that . . . involves” and
not “person associated.”

Of course this reading presents a
reciprocal difficulty. Just as one
cannot readily be conceived as being associated with a gang as a witness, so a
person cannot be meaningfully described as “involved” in a judicial proceeding
“as a member.” But the trial court
correctly recognized the logical ineffectuality of the phrase “as a member” and
quite rationally inferred an intent to apply the condition whenever a gang
associate was involved in the proceeding as a party (or witness). This is
plainly what our colleagues intended, since otherwise the condition would apply
where a gang member was testifying but not where, e.g., he was charged with a
crime and exercised his right not to testify.

We find further support for the
trial court’s reading in the needless verbosity that flows from defendant’s
reading. The practical effect of
defendant’s reading is to limit the clause under scrutiny to cases where a gang
member is testifying; but that intent could be expressed far more succinctly by
stating that the prohibition applies to any “criminal court proceeding that you
know or reasonably should know involves either criminal street gang charges or
a person associated with member of
a criminal street gang (as defined in Penal Code section 186.22) as a
member or witness.”

In sum, we are confident that the
inclusion of the term “member” in this court’s previous decision was in the
nature of a clerical error and that the trial court correctly discerned the
court’s true intention, which was to make the condition applicable whenever a
person associated with a gang is involved in a criminal proceeding as a party
or witness. Since defendant asserts no
infirmity in the language at issue other than its failure to conform to the
mandate in Catalan I, we find no
error.href="#_ftn1" name="_ftnref1" title="">[1]

Disposition

The judgment is affirmed.





______________________________________

RUSHING, P.J.





WE CONCUR:





____________________________________

PREMO, J.





____________________________________

ELIA, J.