Opinion
D040170.
7-29-2003
In re RAUL O., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. RAUL O., Defendant and Appellant.
In this juvenile proceeding, defendant Raul O. pleaded guilty to one count of unlawful carrying and concealing of a knife under Penal Code sections 12020, subdivision (a), and 17, subdivision (b)(4). As part of that plea agreement the court dismissed a charge under Health and Safety Code section 11357, subdivision (b) of possession of marijuana. Raul was declared a ward of the court under Welfare and Institutions Code section 602. He was granted probation and placed with his mother. Moreover, because the court found that he committed an offense involving criminal street gangs, Raul was required to register as a gang member under sections 186.30, subdivision (a), and 186.32, subdivision (a)(1)(C), with law enforcement in the city or county in which he resided.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, Raul challenges the courts probation condition that he register as a gang member. Raul asserts that there was insufficient evidence of his gang activities for him to be required to register. Further, Raul contends that the gang offender registration requirement of section 186.30 (1) is unconstitutionally vague and overbroad; (2) violates his constitutional right against self-incrimination; (3) violates the separation of powers doctrine; (4) violates equal protection guarantees; (5) violates his right to privacy; (6) constitutes cruel and unusual punishment; and (7) violates procedural due process rights. We conclude that substantial evidence supports the courts imposition of the gang registration condition of probation and that none of Rauls constitutional challenges to section 186.30 has merit.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
As this matter was resolved by way of a plea agreement, the following factual background section is taken from the probation report.
In January 2002 officers of the San Diego Police Department Gang Suppression Unit contacted individuals suspected to be gang members who were coming out of a residence in the 2600 block of F Street. When officers contacted Raul, he claimed to be a "Lomas" gang member and told officers that he was carrying a knife. He told police that he carried the knife for "protection" as he had been "jumped by 38th Street Shelltown" gang members. Further, while Raul later denied being a gang member when interviewed by the probation officer for his probation report, he admitted to associating with members of the Lomas gang and stated that his gang moniker was "Cuero." Raul was arrested for carrying a concealed weapon and taken to juvenile hall. Once at juvenile hall, a small bag of marijuana was discovered in his pocket.
B. Procedural Background
The probation department recommended that Raul be required to register as a gang member as a condition of being granted probation. At the sentencing hearing the court indicated that it was inclined to accept that recommendation.
Rauls counsel objected to the gang registration requirement, asserting that Raul did not admit he was a gang member and was not involved in any gang activity at the time of his arrest. The prosecutor responded that Raul had admitted to police when he was stopped that he was a gang member and that he was carrying the knife as protection against a rival gang. Defense counsel argued that Rauls possession of a knife did not constitute a "gang-related" offense.
The court pointed to Rauls statement to the probation officer that he associated with Lomas gang members, that he had been "jumped" by members of a rival gang and that he was carrying a knife for that reason. The court ruled that gang registration was appropriate because Raul "was carrying the knife as a result of his association with gang members and his perceived need for self-protection."
This timely appeal follows.
DISCUSSION
I. Sufficiency of Evidence on Gang Registration Requirement
Raul asserts that the gang registration condition of probation must be stricken as there is insufficient evidence to show that the crime to which he pleaded guilty was "gang related." We reject this contention.
A. Standard of Review
On an appeal contending there is insufficient evidence to support a verdict or order of the court, we review the evidence in the light most favorable to the judgment and, in so doing, determine whether there is substantial evidence such that a rational trier of fact could make the challenged finding. (People v . Hill (1998) 17 Cal.4th 800, 848-849, 952 P.2d 673.) The reviewing court will presume in support of the trial courts judgment the existence of every fact the trier of fact could reasonably infer from the evidence. (People v . Iniguez (1994) 7 Cal.4th 847, 854, 872 P.2d 1183.) "The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on "isolated bits of evidence." [Citation.]" (People v. Cuevas (1995) 12 Cal.4th 252, 906 P.2d 1290 , 260-261.) That the evidence might lead to a different ruling does not warrant a conclusion that the evidence is insubstantial. (People v. Holt (1997) 15 Cal.4th 619, 669, 937 P.2d 213; People v. Berryman (1993) 6 Cal.4th 1048, 1084, 864 P.2d 40, overruled in part on another point in People v. Hill, supra, 17 Cal.4th 800.)
Moreover, it is not our function to reweigh the evidence. (People v. Perry (1972) 7 Cal.3d 756, 785, 103 Cal. Rptr. 161, 499 P.2d 129, overruled in part on another point in People v. Green (1980) 27 Cal.3d 1, 164 Cal. Rptr. 1, 609 P.2d 468.) Thus, a judgment will not be overturned even if we might have made contrary findings or drawn different inferences, as it is the trier of fact, not the appellate court, that must be convinced beyond a reasonable doubt. (People v . Perez (1992) 2 Cal.4th 1117, 1126, 831 P.2d 1159.)
B. Analysis
Section 186.30 provides in part:
"(a) Any person described in subdivision (b) shall register with the chief of police of the city in which he or she resides, or the sheriff of the county if he or she resides in an unincorporated area, within 10 days of release from custody or within 10 days of his or her arrival in any city, county, or city and county to reside there, whichever occurs first. [P] (b) Subdivision (a) shall apply to any person convicted in a criminal court or who has had a petition sustained in a juvenile court in this state for any of the following offenses: [P] . . . [P] (3) Any crime that the court finds is gang related at the time of sentencing." (Italics added.)
Substantial evidence supports the courts finding that Rauls crime was "gang related" so as to require that he register with authorities as a condition of probation. At the time of his arrest, Raul admitted that he was a member of the Lomas gang. He also told officers that he had a knife on his person. Raul told officers that he was carrying the knife for protection as he had been "jumped" by a rival gang recently. Further, although he later denied he was a member of a gang when interviewed by the probation officer, he did admit to associating with Lomas gang members and told the probation officer that his gang moniker was "Cuero."
The foregoing evidence shows that Raul was carrying a concealed weapon for "gang-related" purposes: to protect himself in any altercations with rival gangs. Raul asserts that the evidence shows only that he was merely a resident of a neighborhood where street gangs were common and that he associated with a gang and carried a knife for protection. However, we may not reweigh the evidence on this issue, even if we would come to a different conclusion on whether it showed Rauls crime was gang related. (People v. Perez, supra, 2 Cal.4th at p. 1126.)
Raul cites In re Eduardo C. (2001) 90 Cal.App.4th 937 as demonstrating that there was no substantial evidence here to show that Rauls crime was gang related. In that case, the Court of Appeal reversed a finding under section 186.30 as the only evidence the crime was gang related was that a gang activity box in the probation report was marked "Yes" and the minor had a gang tattoo on his arm. (Id. at pp. 941, 943.)
Here, however, Raul admitted he was a gang member. He also admitted that the reason for his crime of carrying a concealed weapon was gang related. In In re Eduardo C., by contrast, there was no evidence tying the juveniles crime to any gang-related activity. We conclude that substantial evidence supports the courts finding that Rauls crime of carrying a concealed weapon was gang related.
II. Constitutional Challenges
Issues concerning the constitutionality of section 186.30s registration requirement are currently pending before the California Supreme Court in In re Walter S. (2001) 89 Cal.App.4th 946, review granted September 19, 2001, S099120 and In re Adrian R. (2002) 103 Cal.App.4th 1046, review granted January 22, 2003, S111812.
A. Waiver
The People argue in response to Rauls constitutional challenges to the gang registration requirement of section 186.30 that he has waived these issues by not making such challenges at the trial court. This argument is unavailing.
The failure to object in the trial court to a probation condition precludes review of the issue on appeal. (People v. Welch (1993) 5 Cal.4th 228, 237, 851 P.2d 802 (Welch).) This waiver rule applies in both adult proceedings and juvenile proceedings. (Ibid.; In re Abdirahman S. (1997) 58 Cal.App.4th 963, 970-971.) Moreover, the rule applies even where the condition is challenged on constitutional grounds. (In re Josue S. (1999) 72 Cal.App.4th 168, 170 [probation condition challenged as being vague and overbroad]; see also People v. Gardineer (2000) 79 Cal.App.4th 148, 151 (Gardineer ).) "A defendant who contends a condition of probation is constitutionally flawed still has an obligation to object to the condition on that basis in the trial court in order to preserve the claim on appeal. [Citation.]" (Gardineer, supra, 79 Cal.App.4th at p. 151, italics added.)
Raul asserts that he did not waive his constitutional challenges as he objected to the sufficiency of the evidence to support the gang registration as a condition of probation. However, as Gardineer held, the objection must be to the constitutionality of the probation condition to preserve the issue for appeal. (Gardineer, supra, 79 Cal.App.4th at p. 151.) This rule comports with the rationale behind requiring objections to probation conditions in the trial court: "A timely objection allows the court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case. The parties must, of course, be given a reasonable opportunity to present any relevant argument and evidence. A rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce the number of costly appeals brought on that basis." (Welch, supra, 5 Cal.4th at p. 235.)
However, as the People note, the Court of Appeal in In re Justin S. (2001) 93 Cal.App.4th 811, 815 (Justin S.) has held that the waiver rule enunciated in Welch and applied by later cases to constitutional challenges to juvenile probations conditions, does not apply where the issue raised is a question of law that can be resolved without reference to the sentencing record in the trial court. Counsel for Raul does not address this decision.
In Justin S., the Court of Appeal, in holding that no waiver occurs as to questions of law, relied on language from the California Supreme Courts Welch decision, wherein the high court distinguished such situations from the general waiver rule it announced. There, the high court appeared to except from the waiver rule cases involving "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." (Welch, supra, 5 Cal.4th at p. 235; Justin S., supra, 93 Cal.App.4th at p. 815.)
Here, it appears that Rauls constitutional challenges to sections 186.30 and 186.32 also raise pure questions of law that do not require us to analyze the sentencing record before the trial court. The challenges are to section 186.30s registration requirement for "gang-related" conduct and section 186.32s requirement that registrants must give "any information that may be required" by law enforcement as part of the registration process. Thus, the constitutional challenges do not rest on the particular facts of Rauls probation condition, but rather would be applicable to any juvenile given the same probation terms. Because the constitutional challenges present pure questions of law that do not necessitate a review of the sentencing record in this case, we do not find a waiver by Raul and will address his constitutional challenges on the merits.
The People also assert that Rauls constitutional challenges are improper because they are not "as applied" challenges, Raul only asserting hypothetical circumstances under which section 186.30 could be constitutionally infirm. To the extent that Raul only asserts the possibility of constitutional infringements in a hypothetical future setting, we address that fact in our analysis of the particular constitutional challenge raised.
B. Vagueness and Overbreadth
Raul asserts that the gang registration requirement of sections 186.30 and 186.32 are unconstitutionally vague and overbroad as section 186.30 does not define what constitutes "gang-related" conduct and section 186.32 requires a juvenile as part of the process to give authorities "any information" requested. We reject these contentions.
In People v. Castenada (2000) 23 Cal.4th 743, 751, the California Supreme Court explained: "Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement. [Citation.]" (Ibid..) "Vague sentencing provisions may pose constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute." (U. S. v. Batchelder (1979) 442 U.S. 114, 123, 60 L. Ed. 2d 755, 99 S. Ct. 2198.) However, 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." (In re Marriage of Walton (1972) 28 Cal. App. 3d 108, 116, 104 Cal. Rptr. 472.)
Section 186.30 was added by the initiative measure Proposition 21 in the March 7, 2000 Primary Election (Proposition 21). As discussed, ante, section 186.30 provides that a minor who has had a petition sustained in juvenile court for a crime that the court found to be "gang related" must register as a gang offender within 10 days after the minors release from custody or change of residence. Section 186.32, subdivision (a)(1)(C), also added by Proposition 21, provides that when the juvenile registers, "[a] written statement signed by the juvenile, giving any information that may be required by the law enforcement agency, shall be submitted to the law enforcement agency."
Proposition 21 is known as the Gang Violence and Juvenile Crime Prevention Act of 1998.
In People v. Bailey (2002) 101 Cal.App.4th 238 (Bailey ), the Court of Appeal rejected the same argument made by Raul here: that section 186.30s registration requirement is unconstitutionally vague because under section 186.32 registrants are required to give authorities "any information" they need. In so concluding, the court stated, "The underlying purpose of the registration provision is to enhance law enforcement officers ability to prevent gang-related crime by keeping informed of the location of known gang associates. Registration requirements generally are based on the assumption that persons convicted of certain offenses are more likely to repeat the crimes and that law enforcements ability to prevent certain crimes and its ability to apprehend certain types of criminals will be improved if these repeat offenders whereabouts are known. [Citation.] In that light, section 186.32, subdivision (a)(2)(C), which is couched in language similar to the registration provisions for sex offenders, narcotics offenders, and arsonists, may reasonably be construed to require descriptive or identifying information that aids law enforcement in monitoring the whereabouts of gang members and thus preventing gang-related violent crimes. So viewed, section 186.32 is not unconstitutionally vague." (Bailey, supra, at p. 245, fn. omitted.)
As the court in Bailey noted, registration by sex offenders entails "[a] statement in writing signed by the person, giving information as shall be required by the Department of Justice and giving the name and address of the persons employer, and the address of the persons place of employment if that is different from the employers main address." ( § 290, subd. (e)(2)(A), italics added.) Narcotics offenders must register by providing "a statement in writing signed by such person, giving such information as may be required by the Department of Justice" as well as fingerprints and a photograph. (Health & Saf. Code, § 11594, italics added.) Arsonists similarly are required to provide "a statement in writing signed by the person, giving the information as may be required by the Department of Justice" along with fingerprints and a photograph. ( § 457.1, subd. (f), italics added.)
We agree with the analysis of the Bailey court and also construe its information requirement as only necessitating sufficient descriptive and identifying information to aid law enforcement in monitoring gang members and preventing gang-related crimes. Thus, it is not unconstitutionally vague.
In support of his contention that section 186.32 is unconstitutionally vague, and his other constitutional challenges, Raul repeatedly cites In re Walter S., supra, 89 Cal.App.4th 946, review granted September 19, 2001, S099120. Because the California Supreme Court has accepted this case for review, it is improper for counsel to rely on that opinion in its briefs. (Hankins v. El Torito Restaurants, Inc. (1998) 63 Cal.App.4th 510, 518.)
Section 186.30 is also not vague because it regulates "gang-related" activity. First, as Raul recognizes, the term "gang," standing alone, is not vague as it has been defined in People v. Lopez (1998) 66 Cal.App.4th 615, 632 as "a group primarily engaged in the pursuit of criminal activities." Raul agrees that the definition of the word "gang" is clear. However, Raul asserts that the term "related" is vague as it is not defined in the statute and its meaning therefore will vary from court to court. This contention is unavailing.
The term "related" is defined as "standing in relation; connected; allied; akin." (Blacks Law Dict. (6th ed. 1990) p. 1288, col. 1.) We believe that the ordinary person would understand that a "gang-related" crime is one that is connected or allied with gang activity.
Further, In People v. Gardeley (1996) 14 Cal.4th 605, 927 P.2d 713 (Gardeley), the California Supreme Court had the occasion to address the definition of the term "gang related" in a different context. In Gardeley, the high court was presented with the question whether section 186.22, subdivision (e), which describes predicate offenses that must be proven to establish a "pattern of criminal gang activity," required that the predicate offenses be "gang-related." (Gardeley, supra, 14 Cal.4th at p. 620.) In concluding that they need not be, the court also defined the term "gang related" as the term related to criminal offenses. The court held that the term "gang related" for the purposes of that statute meant a crime committed "for the benefit of, at the direction of, or in association with a street gang," as provided by section 186.22, subdivision (b)(1). (Gardeley, supra, at p. 622.)
Raul states that the term "gang related" cannot be interpreted in this manner because section 186.30 does not, like section 186.22, contain an explicit definition of that term. However, it would be illogical that section 186.30, which, like section 186.22 deals with gang crime, would have a different definition of "gang related" than that stated in Gardeley. The term "related," as defined by Blacks Law Dictionary, comports with the definition of "gang related" in section 186.22, subdivision (b)(1). The term "gang related" is sufficiently clear so that it provides "the kind of notice that will enable ordinary people to understand what conduct" the statute prohibits. (People v. Castenada, supra, 23 Cal.4th at p. 751.)
Raul also asserts that the requirement that registrants give law enforcement "any information" they may need is also overbroad because it allows police to include "non-factual, protected matters such as political viewpoint, religious affiliation and the like," and would have an impermissible "chilling effect" on registrants. However, when section 186.32, subdivision (a)(1)(C), is construed to require only descriptive or identifying information, as we have done, "it does not compel answers to unlimited questions from law enforcement officers. The statute requires no more information than is necessary to carry out the legitimate purposes of the Gang Violence and Juvenile Crime Prevention Act of 1998, and is therefore not impermissibly overbroad." (Bailey, supra, 101 Cal.App.4th at p. 245.)
C. Self-Incrimination
Raul contends that the requirement that a registrant provide "any information" law enforcement requires will subject him to violations of his Fifth Amendment right to remain silent. However, "inasmuch as we have determined that the questioning is limited to descriptive information about the registrant, it does not implicate the Fifth or Sixth Amendment. [A] defendant will not be subjected to custodial interrogation or prosecution in violation of his right to remain silent or his right to counsel, nor can the challenged procedure be regarded as comparable to a pre-indictment investigation of a crime suspect." (Bailey, supra, 101 Cal.App.4th at p. 246.)
D. Separation of Powers
Raul asserts that sections 186.30 and 186.32 violate the separation of powers doctrine because the requirement of giving law enforcement "any information " they need and the ability of police, prosecutors and judges to determine what is a "gang-related" crime gives them "uncontrolled discretion." We reject this contention.
"Article III of the California Constitution provides for the separation of powers among the three branches of state government: The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution." (Bixby v. Pierno (1971) 4 Cal.3d 130, 141, 93 Cal. Rptr. 234, 481 P.2d 242.) "The separation of powers doctrine articulates a basic philosophy of our constitutional system of government; it establishes a system of checks and balances to protect any one branch against the overreaching of any other branch." (Ibid.) Under this constitutional principle the "delegation of an uncontrolled discretion is invalid; i.e., where the statute fails to set forth sufficiently definite standards, it is void." (7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 129, p. 185.)
Here, however, the gang registration requirements of sections 186.30 and 186.32 do not give uncontrolled discretion to the police prosecutors and courts. As we have already held, we interpret section 186.32s requirement that registrants give law enforcement "any information" necessary to be limited to descriptive or identifying information. Therefore, they are not given unfettered discretion in the information they may request and there is no danger of arbitrary or discriminatory application. We have also concluded that the term "gang-related" crime is not unconstitutionally vague or overbroad and therefore police, prosecutors and courts do not have unbridled discretion in determining what crimes fall within the statute. Rauls separation of powers argument is unavailing.
E. Equal Protection
Raul asserts that the requirement that gang registrants provide "any information" to law enforcement violate state and federal equal protection guarantees because other statutes requiring registration only require registrants to provide their name, address, photograph and fingerprints. We reject this contention.
"The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. [Citation.] As Justice Frankfurter explained in Tigner v. Texas (1940) 310 U.S. 141, 147, 84 L. Ed. 1124, 60 S. Ct. 879: The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same. [Citation.] [P] The equal protection clause does not assure defendant of the same treatment as all other felons; it assures him only . . . that he will receive like treatment with all other persons similarly situated. [Citation.] Neither the Fourteenth Amendment of the Constitution of the United States nor the California Constitution [citation] precludes legislative classification with respect to persons who are different. [Citation.] Rather, the basic rule of equal protection is that persons similarly situated with respect to the legitimate purpose of the law must receive like treatment. [Citations.] Thus, only those persons who are similarly situated are protected from invidiously disparate treatment. [Citation.] [P] . . . [P] Persons convicted of different crimes are not similarly situated for equal protection purposes. [Citations.] It is one thing to hold, as did [People v. Olivas (1976) 17 Cal.3d 236, 131 Cal. Rptr. 55, 551 P.2d 375] that persons convicted of the same crime cannot be treated differently. It is quite another to hold that persons convicted of different crimes must be treated equally. [Citation.]" (People v. Jacobs (1984) 157 Cal. App. 3d 797, 801-803, 204 Cal. Rptr. 234.)
Here, the gang registration statute does not deny Raul equal protection of the laws. First, as discussed above, the information required to be given by arson, narcotics and sex offenders as part of their registration requirement are substantially similar to that required of gang members. (See fn. 6, ante.) A sex offender is required to give "[a] statement in writing signed by the person, giving information as shall be required by the Department of Justice and giving the name and address of the persons employer, and the address of the persons place of employment if that is different from the employers main address." ( § 290, subd. (e)(2)(A), italics added.) Narcotics offenders must provide "a statement in writing signed by such person, giving such information as may be required by the Department of Justice" as well as fingerprints and a photograph. (Health & Saf. Code, § 11594, italics added.) Arsonists similarly are required to provide "a statement in writing signed by the person, giving the information as may be required by the Department of Justice" along with fingerprints and a photograph. ( § 457.1, subd. (f), italics added.) We have also concluded that the definition of "any information that may be required" in the gang registration statute consists of descriptive and identifying information akin to the descriptive and identifying information required for arson, sex offender and narcotics registrants. Thus, Raul is not treated differently than other registrants and his equal protection challenge fails.
Even if the registration requirements were different for gang members and other registrants such as sex offenders, narcotics offenders and arsonists, Rauls equal protection challenge still fails. Raul was not "similarly situated" with those registrants because they were convicted of different crimes. (People v. Jacobs, supra, 157 Cal. App. 3d at pp. 801-803.)
Raul asserts that he is similarly situated with this type of offender because they all must register. However, the relevant inquiry is the reason they must register. Each of these quite different offenders must register to promote the goals of the particular criminal statutes under which they were convicted. Raul is thus not similarly situated with sex offenders, drug offenders and arsonists such that any differences in the registration requirements for gang members does not support an equal protection challenge.
F. Right to Privacy
Raul asserts that the gang registration requirement violates his constitutional right to privacy because it allows law enforcement limitless questioning and thus overbroad collection and retention of personal information. This contention is unavailing.
As the California Supreme Court noted in White v. Davis (1975) 13 Cal.3d 757, 775, 120 Cal. Rptr. 94, 533 P.2d 222, "the amendment does not purport to prohibit all incursion into individual privacy but rather that any such intervention must be justified by a compelling interest." Given our construction of the term "any information that may be required," the statute does not violate Rauls constitutional right to privacy. The statute only requires the registrant to provide information reasonably necessary to carry out the purposes of the statute. Further, the gang registration statute provides that the statements, photographs, and fingerprints required from a registrant "shall not be open to inspection by any person other than a regularly employed peace or other law enforcement officer." ( § 186.32, subd. (d).) This limitation and the substantial governmental interest in promoting more efficient law enforcement and protecting the public from recidivist offenders justifies any limited invasion of a registrants privacy.
Further, similar right of privacy challenges to the narcotics and sex offender registration requirements have been rejected by this court. In People v. Hove (1992) 7 Cal.App.4th 1003, 1005, the defendant challenged the narcotics offender registration requirement in Health and Safety Code section 11590. In rejecting that challenge we noted that "the constitutional right of privacy is not absolute. Reasonable limitations that do not unduly burden that right are valid." (People v. Hove, supra, at p. 1005.) We held that while the registration requirement did intrude on the defendants right of privacy, it did not "substantially burden that right." (Id. at p. 1006.) We further rejected the defendants assertion that the registration requirement promoted "snooping" and "the compiling of unnecessary and secret police dossiers" as mere speculation." (Ibid.)
Similarly, in People v. Mills (1978) 81 Cal. App. 3d 171, 181, 146 Cal. Rptr. 411, we rejected a privacy challenge to the sex offender registration requirement of section 290 on the ground that the defendant, by molesting a child, waived any right to privacy. (People v. Mills, supra, at p. 181.) We further held that the state had a rational basis for the collection and retention of information concerning sex offenders, even if such actions invaded a defendants right of privacy. (Ibid.)
Based upon the foregoing authorities and analysis, we conclude that section 186.30 and 186.32s registration requirements do not violate Rauls right of privacy.
G. Cruel and Unusual Punishment
Relying upon the California Supreme Courts opinion in In re Reed (1983) 33 Cal.3d 914, 191 Cal. Rptr. 658, 663 P.2d 216 (Reed), Raul asserts that the gang registration requirement constitutes cruel and unusual punishment under the federal and state constitutions. We reject this contention as gang registration, even if punishment, is not "cruel and unusual.".
In Reed, the California Supreme Court did hold that a lifetime sex offender registration under section 290, when applied to a defendant convicted of misdemeanor lewd conduct, was a form of punishment and that it was cruel or unusual within the meaning of article I, section 17, of the California Constitution. (Reed, supra, 33 Cal.3d at pp. 919, fn. 4, 922.)
However, 16 years later the high court ruled that the lifetime sex offender registration did not constitute punishment in the context of the constitutional prohibition on ex post facto punishments. In People v. Castellanos (1999) 21 Cal.4th 785, 982 P.2d 211, the courts lead opinion highlighted two factors in the determination of whether a law constitutes punishment: "Whether the Legislature intended the provision to constitute punishment and, if not, whether the provision is so punitive in nature or effect that it must be found to constitute punishment despite the Legislatures contrary intent." (Id. at p. 795.) Applying this test, the lead opinion by Chief Justice George concluded that sex offender registration is not "punishment" for the purpose of ex post facto analysis. The court first held that "although registration imposes a substantial burden on the convicted offender, this burden is no more onerous than necessary to achieve a purpose of the statute." (Id. at p. 796.) The high court further found that historically such registrations had not been considered punishment, which supported the conclusion that the Legislature did not intend the provision to constitute punishment and that the provision was not punitive in nature. (Id. at p. 798.)
The lead opinion also addressed the continued validity of Reed. The high court concluded that "Reed should be disapproved to the extent that decision can be interpreted as suggesting that sex offender registration constitutes punishment for purposes of ex post facto analysis." (Castellanos, supra, 21 Cal.4th at p. 798.) The lead opinion also distinguished the issue presented in Reed, which was whether registration constituted punishment for cruel and unusual punishment analysis. The lead opinion in Castellanos emphasized that the Reed opinion was focused upon whether lifetime registration was excessive or disproportionate to the misdemeanor crime committed there. (Castellanos, supra, 21 Cal.4th at p. 798.)
In a concurring and dissenting opinion, Justice Kennard, while agreeing that sex offender registration did not constitute punishment, applied a slightly different test than did the lead opinion. (Castellanos, supra, 21 Cal.4th at pp. 803-804.) Justice Kennard also concluded that the Reed case was still good law because the concept of punishment for an analysis of Eighth Amendment rights (or the state constitutional equivalent in article I, section 17) is broader than the definition for ex post facto analysis. (Castellanos, supra, at p. 805.) Therefore, Justice Kinnard concluded that a statute could be considered punishment under a cruel and unusual punishment analysis and not be punishment under an ex post facto analysis. (Ibid. )
Thereafter, the Court of Appeal in Bailey, supra, 101 Cal.App.4th 238, concluded that gang registration under sections 186.30 and 186.32 also was not punishment for ex post facto purposes: "We do not believe the gang registration requirement constitutes punishment either by legislative intent or in effect. Registration helps authorities monitor the location of those associating with gangs and thereby promotes the goal of protecting the public from gang-related violent crime. [Citation.] Under the statute, registration entails an appearance at the police or sheriffs department, a written statement containing information required by the law enforcement agency, and submission of fingerprints and a photograph. In addition, any change in residence address must be reported within 10 days to the appropriate agency. [Citation.] While the provision creates a burden for the registrant, unlike the lifetime requirement for sex offenders it is limited to five years after the last imposition of a registration requirement. [Citations.] Thus, we conclude that registration is intended to serve legitimate purposes other than punishment, and that the effect of the requirement is not so punitive in fact that it must be regarded as punishment, despite the Legislatures contrary intent. [Citation.]" (Bailey, supra, at p. 244.)
The one published decision deciding whether gang registration constituted punishment for the purposes of determining if such punishment was cruel and unusual has been accepted for review by the California Supreme Court, which review is still pending. (See In re Walter S., supra, 89 Cal.App.4th 946, review granted Sept. 19, 2001, S099120.) Here, however, we need not decide whether gang registration can be considered "punishment" for the purposes of our analysis. That is so because, even if it is punishment, it is certainly not "cruel and unusual."
The Eighth Amendment to the United States Constitution provides that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." Under the Eighth Amendment, challenges to the length of a sentence are rarely granted. (Ewing v. California (2003) 155 L. Ed. 2d 108, U.S. [123 S. Ct. 1179, 1185].) Reviewing courts give great deference to legislative authority to determine the length and limit of sentences. (Id. at p. 1186.) Under the California Constitution, courts also will interfere with the legislative power to prescribe punishment only in the most extreme cases. (People v. Dillon (1983) 34 Cal.3d 441, 477-478, 194 Cal. Rptr. 390, 668 P.2d 697 (Dillon ).)
Courts use a three-part test to determine if a sentence constitutes cruel and unusual punishment. First, courts examine the "nature of the offense and/or the offender, with particular regard to the degree of danger both present to society." (In re Lynch (1972) 8 Cal.3d 410, 425-429, 105 Cal. Rptr. 217, 503 P.2d 921; see also Dillon, supra, 34 Cal.3d at p. 479.) Second, the court will compare the challenged punishment with punishments prescribed for more serious crimes in the same jurisdiction. Third, the challenged punishment is compared with punishments for the same offense in other jurisdictions. (In re Lynch, supra, at pp. 426-427.) Ultimately, the question is whether a particular punishment is so out of proportion to the offense that "it shocks the conscience and offends fundamental notions of human dignity." (Id. at p. 424.)
Raul first attacks the registration requirement here by noting that it applies to any "gang-related" crime, no matter how minor, and because it requires that a registrant give "any information" law enforcement requires. As we have already discussed, we construe the information requirement as only requiring necessary descriptive and identifying information. Thus, it does not constitute cruel and unusual punishment.
Further, in assessing whether the punishment is "cruel and unusual" Raul cannot argue that it may be excessive in hypothetical cases where the crime is insignificant. (United States v. Smith (9th Cir. 1987) 818 F.2d 687, 690.) We must determine whether the five-year registration requirement is unconstitutionally disproportionate to Rauls crime. (Ibid.) Raul, however, does not assert that the registration requirement is excessive as applied to him.
Raul also objects to the fact that courts have no discretion but to require gang registration even in the case of minor crimes. This is actually a due process argument. Court have consistently held that mandatory sentencing requirements that remove a courts discretion to consider mitigating factors do not violate due process rights. (United States v. Wilkins (9th Cir. 1990) 911 F.2d 337, 339; United States v. Dumas (6th Cir. 1990) 934 F.2d 1387, 1389.) Further, to the extent that Rauls assertion can be considered an objection on cruel and unusual punishment grounds it also fails. A statute does not impose cruel and unusual punishment because it precludes any consideration of mitigating factors such as the nature of the offense or the offender. (Harmelin v. Michigan (1991) 501 U.S. 957, 996, 115 L. Ed. 2d 836, 111 S. Ct. 2680; People v. Gayther (1980) 110 Cal. App. 3d 79, 90, 167 Cal. Rptr. 700.) In sum, to the extent that gang registration may be considered punishment, that registration requirement as applied to Raul was not "cruel or unusual."
H. Due Process of Law
Raul asserts that section 186.30 violates his due process rights because it does not provide adequate procedural protections to prevent arbitrary findings, does not provide adequate notice, and lacks any hearing requirement. We reject this contention.
The California and United States Constitution provide that a person shall not be deprived of life, liberty or property without due process of law. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 7.) Due process requirements are flexible and only call for such procedural protections as a particular situation demands. (People v. Ramirez (1979) 25 Cal.3d 260, 268, 158 Cal. Rptr. 316, 599 P.2d 622.) Generally, to satisfy due process concerns, a party must be given "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (In re Melinda J. (1991) 234 Cal. App. 3d 1413, 1418, 286 Cal. Rptr. 239.)
Under the California Constitution, the amount of due process necessary depends on a balancing of the relevant private and governmental interests. (People v. Ramirez, supra, 25 Cal.3d at p. 269.) Federal procedural due process requirements only apply where there is a deprivation of life, liberty or property. (People v. Talhelm (2000) 85 Cal.App.4th 400, 408, fn. 5.) Where this is established, courts will then decide what procedures are necessary to constitute due process of law. (Murden v. County of Sacramento (1984) 160 Cal. App. 3d 302, 307, 206 Cal. Rptr. 699.)
Assuming that Raul can establish for federal constitutional purposes that gang registration impacts life, liberty or property, the gang registration statute provides adequate procedural due process protections. Raul was provided notice that at sentencing a gang registration condition would be considered by the court as this was recommended in the probation report that was filed seven days before that hearing. Further, Raul was provided with a hearing and his counsel was allowed to argue against imposition of the gang registration. These are all the procedural due process rights that are necessary under the constitution.
As discussed above with regard to Rauls cruel and unusual punishment challenge, it is questionable whether gang registration constitutes punishment, and therefore there may be no deprivation of liberty here.
Raul asserts that section 186.30 violates procedural due process rights because the statute itself does not actually mandate notice and a hearing. However, as a probation report is required for sentencing, which will give recommendations of probation conditions, actual notice is assured. Moreover, section 186.30, subdivision (b)(3)s requirement of registration for those whose crime "the court finds is gang related at the time of sentencing or disposition " must be construed as providing for a hearing and a meaningful opportunity to object at the sentencing or disposition hearing. There is no need for a separate hearing on the gang registration condition. Section 186.30 does not violate Rauls procedural due process rights.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., HALLER, J.