Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS090189.
Premo, J.
Defendant Olivo Perez Pina appeals from an order granting him formal probation under specified conditions following his plea of no contest to infliction of corporal injury on a cohabitant. On appeal, he challenges four gang-related probation conditions contending that they are (1) unconstitutionally vague and overbroad, and (2) unreasonable. We modify the order and affirm it.
LEGAL BACKGROUND
Under Penal Code section 1203.1, a trial court granting probation may impose “reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer....” (§ 1203.1, subd. (j).) “The primary goal of probation is to ensure ‘[t]he safety of the public... through the enforcement of court-ordered conditions of probation.’ (Pen. Code, § 1202.7.)” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) “In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.” (Id. at pp. 1120-1121.)
Further unspecified statutory references are to the Penal Code.
“The trial court’s discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute.” (People v. Carbajal, supra, 10 Cal.4th at p. 1121.) The Supreme Court has “interpreted Penal Code section 1203.1 to require that probation conditions which regulate conduct ‘not itself criminal’ be ‘reasonably related to the crime of which the defendant was convicted or to future criminality.’ ” (Ibid.) “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.” ’ ” (People v. Olguin (2008) 45 Cal.4th 375, 379.) Thus, “even if a condition of 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.” (Id. at p. 380.)
“As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or ‘ “ ‘exceeds the bounds of reason, all of the circumstances being considered.’ ” ’ ” (People v. Carbajal, supra, 10 Cal.4th at p. 1121.) “We review conditions of probation for abuse of discretion.” (People v. Olguin, supra, 45 Cal.4th at p. 379.)
As to infringement of constitutional rights, “probation is a privilege and not a right, and... adult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights--as, for example, when they agree to warrantless search conditions.” (People v. Olguin, supra, 45 Cal.4th at p. 384.) But the Supreme Court has recognized that “[a] probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.” (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
In addition, “[a] probation condition ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated, ’ if it is to withstand a challenge on the ground of vagueness.” (In re Sheena K., supra, 40 Cal.4th at p. 890.) Thus, a probation condition forbidding a minor from associating with “ ‘anyone disapproved of by probation’ ” was unconstitutionally vague where the probation condition did not inform the minor “in advance with whom she might not associate” but it could be rendered constitutional by modifying the condition “to impose an explicit knowledge requirement....” (Id. at pp. 889, 891-892.)
While a defendant forfeits any claim that a probation condition is unreasonable if he fails to timely raise an objection in the trial court (People v. Welch (1993) 5 Cal.4th 228, 234-237), the forfeiture rule does not apply to a facial challenge to a patently unconstitutional probation condition that may be corrected on appeal without reference to the particular sentencing record developed in the trial court and without remanding to the trial court for further findings. (In re Sheena K., supra, 40 Cal.4th at pp. 885-889.) Other constitutional challenges cannot be raised on appeal in the absence of objection in the trial court. (Id. at p. 889.)
FACTUAL BACKGROUND
Defendant attended a wedding reception and became upset when he observed his estranged girlfriend dancing with another man. He forced her into his car and drove to his home. Each time he stopped at a traffic light, he struck the victim in the face and head with his fists.
At the time of the offense, defendant was on three separate grants of conditional probation and was a Sureno gang member with distinctive tattooing associated with the Sureno gang. He also had been injured in an unsolved shooting that the police were investigating as a gang-related crime. At the time the probation report was written, defendant was “housed in a dormitory populated exclusively by active Sureno gang members and their affiliates.”
The trial court imposed gang conditions of probation to which defendant objected on the ground that the conditions were unreasonable. He argued that the case was a domestic violence case rather than a gang case and that he had no gang criminal history. The challenged conditions are as follows.
“22. Not be present in any area you know, suspect, or are told by the Probation Officer to be a gang-gathering area.”
“23. Not associate with any individuals you know or suspect to be gang members, drug users, or on any form of probation or parole supervision.”
“26. 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 blue.”
“27. Do not obtain any new gang related tattooing upon your person while on probation supervision. You shall permit photographing of any tattoos on your person by law enforcement.”
DISCUSSION
Defendant contends that the conditions are vague and overbroad because the word “gang” is uncertain in meaning and should be modified to refer to “criminal street gang.” The court in People v. Lopez (1998) 66 Cal.App.4th 615, 631, “solved this vagueness problem by incorporating the definition of gangs set forth in Penal Code section 186.22.” (In re Vincent G. (2008) 162 Cal.App.4th 238, 246.) The People agree that the condition can be so modified while disagreeing that it is necessary. (In re Justin S. (2001) 93 Cal.App.4th 811, 816 [statutory definition of gang is fairly implied in probation condition prohibiting association with gang members].) We will so modify the condition.
Defendant next contends that condition 22 is vague because “it does not define with sufficient clarity which areas are off limits.” He also claims that the condition is overbroad because “it appears to banish [him] from areas where he legitimately might be....”
In support of these claims, defendant cites this court’s opinion in the case of In re H.C. (2009) 175 Cal.App.4th 1067 (H.C.).
In H.C., we discussed the propriety of a condition that a probationer “ ‘not frequent any areas of gang related activity and not participate in any gang activity.’ ” (H.C., supra, 175 Cal.App.4th at p. 1072.) We found the word “ ‘frequent’ ” to be “obscure” and the phrase “ ‘areas of gang-related activity’ ” to be overbroad in that it “might be, in some instances, an entire district or town.” (Ibid.) We gleaned that the point of the probation condition was to prohibit the minor from visiting areas known to him to be a place of gang-related activity. Although we considered it “preferable” for such a condition “to name the actual geographic area that would be prohibited to the minor and then to except from that certain kinds of travel, that is, to school or to work, ” we concluded that “[a]t the very least the condition... should be revised to say that the minor not visit any area known to him to be a place of gang-related activity.” (Ibid.)
Here, condition 22 is consistent with our conclusion in H.C. It states that defendant should not be present in a known or suspected gang-gathering area. Unlike defendant, we do not find the concept “gang-gathering area” to be vague. It is well known that modern criminal street gangs frequent particular geographical areas to carry out their activities. “No one immersed in the gang culture is unaware of these realities, and we see no reason the courts should turn a blind eye to them.” (People v. Montes (1999) 74 Cal.App.4th 1050, 1056.) Although we do not find the concept “not be present” to be vague or obscure, we nevertheless find the concept to be constitutionally problematic. Applied literally, the prohibition against being “present” in gang areas would render defendant subject to arrest for a probation violation for merely passing through gang-gathering areas while traveling by bus or in a friend’s car on his way to school, work, home, or the court. Such an application, however, implicates defendant’s constitutional right to travel and is not narrowly tailored to prevent defendant’s involvement in gang-related activity and achieve the rehabilitative and reformative purposes of probation. (See In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373 [observing that a restriction on travel to gang territory might be proper for a minor living outside the gang’s territory but overbroad for a minor who lives, works, or attends school within that area]; In re White, supra, 97 Cal.App.3d at pp. 149-151 [probation condition forbidding travel within designated areas having significant prostitution activities violated the defendant’s constitutional right to travel].) Accordingly, we shall modify the condition to prohibit defendant from visiting or remaining in any area he knows, suspects, or is told by his probation officer to be a gang-gathering area.
Although “[t]he word ‘travel’ is not found in the text of the [federal] Constitution, ” “the ‘constitutional right to travel from one State to another’ is firmly embedded in [the United States Supreme Court] jurisprudence.” (Saenz v. Roe (1999) 526 U.S. 489, 498.) “The right to travel has been described as a privilege of national citizenship, and as an aspect of liberty that is protected by the Due Process Clauses of the Fifth and Fourteenth Amendments.” (Jones v. Helms (1981) 452 U.S. 412, 418-419, fn. omitted; see Attorney General of N.Y. v. Soto-Lopez (1986) 476 U.S. 898, 902 (plur. opn. of Brennan, J.) [“textual source of the constitutional right to travel, or, more precisely, the right of free interstate migration” “has been variously assigned to the Privileges and Immunities Clause of Art. IV, ” “to the Commerce Clause, ” “to the Privileges and Immunities Clause of the Fourteenth Amendment, ” and “has also been inferred from the federal structure of government adopted by our Constitution”].) “The ‘right to travel’ discussed in [the United States Supreme Court] cases embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.” (Saenz v. Roe, supra, at p. 500.) In addition, “[t]he right of intrastate travel has been recognized as a basic human right protected by article I, sections 7 and 24 of the California Constitution.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1100; see In re White (1979) 97 Cal.App.3d 141, 148 [“the right to intrastate travel (which includes intramunicipal travel) is a basic human right protected by the United States and California Constitutions as a whole.”].)
Defendant also urges that conditions 26 and 27 are constitutionally infirm because they delegate “to the probation officer unfettered discretion in determining the scope of the condition[s], ” which would result in “arbitrary and discriminatory enforcement.” He claims that condition 26 could prohibit “for no legitimate purpose the possession or display of everyday items” and condition 27 could prohibit “displaying innocent messages that might be deemed by someone to be gang-related.” We glean that defendant is concerned about “unfettered discretion” being vested in one probation officer whose definitions may vary “from one probation officer to another.”
A probation condition that in effect delegates unfettered discretion to a probation officer to determine its scope risks being unconstitutionally overbroad. In People v. O’Neil (2008) 165 Cal.App.4th 1351, the court struck down a condition that forbade the defendant from associating with all persons designated by his probation officer because the condition was “overbroad and permit[ted] an unconstitutional infringement on defendant’s right of association.” (Id. at pp. 1354, 1358.) The court acknowledged that a trial court “may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation” but a probation condition could not be “entirely open-ended” because the trial court was responsible for determining “the nature of the prohibition placed on a defendant as a condition of probation, and the class of people with whom the defendant is directed to have no association.” (Id. at pp. 1358-1359.) The court reasoned: “Although probation officers may be given ‘wide discretion to enforce court-ordered conditions’ (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373), they may not create conditions not expressly authorized by the court (id. at pp. 1372-1373).” (Id. at p. 1358.)
Here, conditions 26 and 27 are not open-ended. They prohibit gang indicia, including tattoos, and leave details up to the probation officer. If defendant is uncertain whether a given clothing item or tattoo is appropriate for him, he can consult with his probation officer to learn what is expected of him beforehand. Defendant knows what blue color is prohibited and, contrary to defendant’s supposition, his probation officer would not irrationally tell him after the fact that he violated probation by wearing a “light blue, blue-green, or teal” clothing item. We agree with the People, however, that it is appropriate to modify condition 27 to expressly require knowledge of the gang nature of a tattoo.
Defendant finally reiterates that all of the conditions are unreasonable. He urges that there was no evidence that gang membership played a role in the offense, the conditions relate to behavior that is otherwise legal, and the conditions forbid conduct that is not reasonably related to future criminality. There is no merit to this point.
The probation report states that defendant is a Sureno gang member. Defendant had Sureno tattoos. He was in a suspected gang gunfight. The trial court convicted him of a violent assault against a confined, helpless victim. It is not irrational to conclude that forbidding defendant from participating in his gang culture while on probation is reasonably related to avoid future criminality. (People v. Olguin, supra, 45 Cal.4th at p. 380 [“even if a condition of 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.”].)
DISPOSITION
The order for formal probation is modified as follows: add to condition 22, “For purposes of these conditions, the word gang means a criminal street gang as defined in Penal Code section 186.22, subdivisions (e) and (f)”; modify condition 22 to read, “You shall not visit or remain in any area known by you, suspected by you, or told by the probation officer to be a gang-gathering area”; modify condition 27 to read, “Do not obtain any new known gang related tattooing upon your person while on probation supervision. You shall permit photographing of any tattoos on your person by law enforcement.” As so modified, the order for formal probation is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.