Opinion
NOT TO BE PUBLISHED
Monterey County, Super. Ct. No. SS081877A
Bamattre-Manoukian, ACTING P.J.
Defendant Martin Alonzo was convicted by no contest plea of attempting to possess alcohol in jail (Pen. Code, §§ 664, 4573.8). The trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions. One of the conditions was that he not possess, wear, use, or display anything he knows or suspects to be associated with a gang, including items that “include the color red/blue.” Defendant contends on appeal that the condition is invalid as unreasonable and unconstitutionally vague. We agree. Accordingly, we will modify the condition to read: “Not possess, wear, use or display any item you know or suspect 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, as well as any such item prohibited by the Probation officer.” We will affirm the order of probation as so modified.
All further unspecified statutory references are to the Penal Code.
BACKGROUND
Defendant was charged by information with possessing alcohol in jail (§ 4578.8; count 1) and attempting to possess alcohol in jail (§§ 664, 4578.8; count 2). On August 7, 2008, he entered into a negotiated plea agreement whereby he pleaded no contest to count 2 on condition that he receive felony probation with service of a 90-day jail term, and that count 1 be dismissed. His counsel stated that the factual basis for the plea was that “[o]n or about the date of July 7, 2008, Mr. Alonzo had in his possession a substance which could have been termed to be pruno by the preliminary test of a 10 percent alcohol content and he was in custody at the Monterey County Jail.” The court ordered a presentence report and continued the matter for sentencing.
The probation officer’s report stated that defendant was in jail on July 8, 2008, after being convicted of vehicle theft (Veh. Code, § 10851, subd. (a)) and failing to stop at the scene of an accident (Veh. Code, § 20001, subd. (a)). Defendant told the probation officer that he agreed to “ ‘watch’ ” the pruno for another inmate because he had been promised two cups of the approximately three gallons of liquid found. Defendant admitted during his probation interview that he is a member of a Norteno street gang. He was housed in a jail dormitory used exclusively for Norteno gang members.
The probation officer recommended that imposition of sentence be suspended and that defendant be placed on formal probation for three years with various terms and conditions, including three gang conditions, Nos. 13, 14, and 15. One of the recommended gang conditions, No. 15, was that defendant “Not possess, wear, use or display any item you know or suspect 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 well as any such item prohibited by the Probation Officer.”
At the sentencing hearing on September 4, 2008, the court suspended imposition of sentence and placed defendant on probation for three years. Defendant’s counsel requested that the gang conditions not be imposed. “There is no nexus to this particular offense. He entered a plea to attempted possession of pruno while in the county jail. And I notice on the other matter the gang terms were not imposed, that they were actually objected to and struck by the Court. So I ask that they be struck in this matter as well.” The prosecutor argued, “Well, maybe it’s time that Mr. Alonzo realizes that committing crimes as a Norteno gang member and making pruno in the jail in a Norteno pod is sufficient to create a nexus between his activity in the probation conditions. I think they’re reasonably related to the conduct here. I think his self-admissions and conduct, particularly in the jail, all warrants the gang conditions.” The court responded, “I’m not going to strike Numbers 13, 14, and 15 dealing with the gang requirements. You’re to comply with all of those.” Defendant stated that he understood and accepted all the terms and conditions of his probation.
Defendant filed a timely notice of appeal. (See Cal. Rules of Court, rule 8.304(b)(4).)
DISCUSSION
Defendant contends that probation condition No. 15, the condition prohibiting him from wearing, possessing, using, or displaying any item he knows to be associated with a gang is invalid because it is unreasonable and unconstitutionally vague. “Wearing red or blue had no nexus with the crime of possessing Pruno in jail. Furthermore, [defendant] is a Norteno, which only identifies with the color red.” “Prohibiting [defendant] from wearing, possessing or displaying red paraphernalia associated with the Norteno gang would be reasonably related to possible future criminality as a Norteno gang member. However, prohibiting [defendant] from wearing, possessing or displaying anything which includes the color blue is unreasonable. The color blue is associated with the Sureno gang.” “[Defendant] is not a Sureno gang member.” “The condition that [defendant] not possess, wear[,] use[,] or display any paraphernalia which includes the color blue is therefore invalid. The condition should be modified to strike any reference to the color blue.” “Unless the condition is limited” “to red-colored paraphernalia which [defendant] knows is associated with the Norteno gang,” it also “violates due process.”
“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.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) “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.]” (People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted (Lent).) “[T]he three factors must all be found to be present in order to invalidate a condition of probation.” (People v. Balestra (1999) 76 Cal.App.4th 57, 65, fn. 3 (Balestra); see also Lent, supra, 15 Cal.3d at p. 486, fn. 1.) Therefore, “a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.” (Lent, supra, 15 Cal.3d at p. 486.)
“The trial court’s discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute.” (Carbajal, supra, 10 Cal.4th at p. 1121.) “Insofar as a probation condition serves the statutory purpose of ‘reformation and rehabilitation of the probationer,’ (§ 1203.1[, subd. (j)]) it necessarily follows that such a condition is ‘reasonably related to future criminality’ and thus may not be held invalid whether or not it has any ‘relationship to the crime of which the offender was convicted.’ [Citation.]” (Balestra, supra, 76 Cal.App.4th at p. 65.)
A probation condition is also subject to the “ ‘void for vagueness’ ” doctrine. (People v. Lopez (1998) 66 Cal.App.4th 615, 630; People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325.) The “underlying concern” of the void for vagueness doctrine “is the core due process requirement of adequate notice,” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115 (Acuna)) or “ ‘fair warning.’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) “The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders’ [citation], protections that are ‘embodied in the due process clauses of the federal and California Constitutions. [Citations.]’ ” (Ibid.) “A probation condition ‘must be sufficiently precise for the probationer to know what is required of him [or her], and for the court to determine whether the condition has been violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.]” (Ibid.) Gang conditions of probation that prohibit conduct without including an element of knowledge suffer from constitutionally fatal vagueness. (See, e.g., Acuna, supra, 14 Cal.4th at p. 1117; In re Justin S. (2001) 93 Cal.App.4th 811, 816.)
Against this framework, we review the trial court’s imposition of probation conditions for abuse of discretion. “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.’ ” [Citations.]’ [Citation.]” (Carbajal, supra, 10 Cal.4th at p. 1121.)
The gang condition prohibiting defendant from possessing, wearing, using, or displaying any gang items both relates to the crime of which defendant was convicted and relates to future criminality. The condition is related to the crime of which defendant was convicted as defendant is an admitted Norteno gang member and was in a unit of the county jail used to house only Norteno gang inmates when he agreed to possess pruno made for the benefit of himself and another inmate. The condition is related to future criminality as it serves the statutory purpose of defendant’s rehabilitation and reformation. (Balestra, supra, 76 Cal.App.4th at p. 65.) Accordingly, we may not find the condition invalid on this ground.
In addition, the gang condition at issue is not void for vagueness. It already includes the element of knowledge that defendant requests that it be modified to include. The condition states that defendant is “[n]ot to possess, wear, use or display any item you know or suspect to be associated with membership or affiliation in a gang....” (Italics added.) Accordingly, we need not modify the condition to include the element of knowledge.
Defendant contends that “[t]he probation condition should be limited to red-colored paraphernalia [he] knows is associated with the Norteno gang,” and that “[u]nless the condition is limited in this manner, it violates due process.” We agree.
The gang condition must be modified because it prohibits defendant from possessing, wearing, using, or displaying items that include the color blue, when he knows or suspects that the item is associated with a gang. The color blue is not associated with the Norteno gang with which he is a member. The color red is associated with Norteno gangs (see, e.g., People v. Salcido (2007) 149 Cal.App.4th 356, 361 [red is “the Norteno color”]), and defendant acknowledges that the condition properly prohibits him from possessing, wearing, using, or displaying red gang-associated items. However, we cannot say that the part of the condition prohibiting the possession or display of blue gang-related items is reasonably related to the crime of which defendant was convicted, relates to conduct that is in itself criminal, or forbids conduct reasonably related to defendant’s future criminality. (Lent, supra, 15 Cal.3d at p. 486.) Accordingly, we will modify probation condition No. 15 to delete the word “blue,” and affirm the probation order as so modified.
DISPOSITION
Probation condition No. 15 is modified to read as follows: “Not possess, wear, use or display any item you know or suspect 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, as well as any such item prohibited by the Probation officer.” As so modified, the probation order is affirmed.
WE CONCUR: McAdams, J., duffy, J.