Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Super.Ct.No. FVI702577. Annemarie G. Pace, Judge. Affirmed as modified.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Michael Murphy and Ivy B. Fitzpatrick, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant pled guilty to carrying a stolen firearm (Pen. Code, § 12031, subd. (a)(1)) (count 2) and possession of marijuana for sale (Health & Saf. Code, § 11359) (count 3). In return, the remaining allegations of carrying a loaded firearm while an active participant in a criminal street gang (Pen. Code, § 12031, subd. (a)(2)(c)) (count 1) and engaging in street terrorism (Pen. Code, § 186.22, subd. (a)) (count 4) were dismissed, as was the gang enhancement allegation (Pen. Code, § 186.22, subd. (b)(1)(A)). Thereafter, pursuant to the terms of the plea agreement, the trial court suspended imposition of sentence for three years and placed defendant on probation on various terms and conditions, including that he serve 180 days in jail.
On appeal, defendant contends three of his gang-related probation conditions must be stricken as overbroad or, in the alternative, modified. He also claims that probation condition No. 30 is an improper delegation of judicial authority to the probation officer. We agree that two of his probation conditions must be modified to include a knowledge requirement but reject defendant’s remaining contentions.
I
The factual background is taken from the probation officer’s report.
In November 2007, a police officer stopped defendant’s vehicle for a broken taillight. When the officer approached the vehicle, he smelled marijuana emanating from the vehicle. The officer asked defendant to exit the driver’s seat and inquired whether defendant had any marijuana or contraband in the vehicle. Defendant replied in the negative. Defendant behaved suspiciously and did not answer when the officer asked if he had any weapons. Defendant eventually admitted to possessing a weapon, and the officer recovered a loaded .38 revolver from his sweatshirt pocket. The gun was later found to be stolen. The officer also recovered nine baggies of marijuana, each weighing three grams. Defendant, who was then 18 years old, was discovered to be an admitted member of the Pasadena Denver Lanes Bloods.
Defendant was subsequently interviewed by the probation officer. Defendant claimed that he had found the gun in the desert and kept it for protection because he had been shot before. Regarding the marijuana, he asserted that he had just purchased the marijuana, that it was for personal use, and that he had never sold marijuana. In addition, he denied membership in the gang and claimed that he was only identified as a gang member “because of his brother-in-law.”
II
DISCUSSION
At the sentencing hearing, defense counsel objected to certain gang restriction probation conditions as unreasonable, vague, and overbroad. Here, he contends condition Nos. 29, 30, and 31 must be stricken “because they have no relationship to the offenses for which [he] was convicted,” and he did not plead guilty to a “gang” offense. He further claims that, if not stricken, the conditions must be modified, as they are vague or overbroad.
Condition No. 29 provides that defendant “not be on any school campus or stop within 100 yards unless enrolled there or with prior administrative permission from school authorities.” (Capitalization omitted.)
Condition No. 30 provides that defendant “[n]ot wear, display or have in [his] possession any item associated with gang dress or any items prohibited by the probation officer[,] including but not limited to any insignia, emblem, button, badge, cap, hat, scarf, bandanna, or any article of clothing, hand sign, or paraphernalia associated with membership or affiliation in any gang.”
Condition No. 31 forbids defendant from appearing “at any court building, including the lobby, hallway, courtroom, or parking lot unless [he is] a party, defendant or subpoenaed as a witness to a court proceeding.”
A. Reasonableness of Challenged Probation Conditions
We review the trial court’s imposition of the terms and conditions of probation pursuant to the abuse of discretion standard of review. (People v. Balestra (1999) 76 Cal.App.4th 57, 65.) People v. Lent (1975) 15 Cal.3d 481 established a framework to determine the reasonableness of an adult probation condition. Lent held that an adult probation condition is unreasonable only if “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 . . . .’” (Id. at p. 486.)
It is undisputed that the gang conditions in this case were not related to the crime for which defendant was convicted and that the conditions relate to conduct that is not in itself criminal. Therefore, we may uphold the gang restriction conditions only if the conditions are “reasonably related to future criminality . . . .” (People v. Lent, supra, 15 Cal.3d at p. 486.) For the following reasons, we conclude that the gang restriction conditions are, in fact, reasonably related to defendant’s future criminality.
Defendant was found to be an admitted member of the Pasadena Denver Lanes Bloods. He was charged with gang offenses and enhancements, which were subsequently dismissed as part of his plea agreement. Defendant maintains that because no Harvey waiver was obtained in this case, the court was precluded from considering charges that were dismissed as a “‘[c]ircumstance in [a]ggravation . . . .’” Even if defendant is correct in that the court could not consider the dismissed charges, there is sufficient evidence in the record to support the conclusion that defendant was a gang member. In Williams v. New York (1949) 337 U.S. 241, 247-250 (69 S.Ct. 1079, 93 L.Ed. 1337), the court found that once guilt has been determined, evidence that would be inadmissible on the issue of guilt may nevertheless be received as bearing on the punishment to be imposed. Furthermore, the court may exercise “wide discretion in the sources and types of evidence used to assist” in sentencing. (Id. at p. 246.) Given the broad scope of discretion given to the trial court in this matter, the trial court reasonably could have determined that defendant was an identified member of the Pasadena Denver Lanes Blood. Besides defendant’s self-serving statement to the contrary, there is nothing in the probation report to indicate that the identification of defendant as a gang member was unreliable.
People v. Harvey (1979) 25 Cal.3d 754.
Because defendant has been identified as a gang member, his disassociation from gang members will help prevent future criminality. In People v. Lopez (1998) 66 Cal.App.4th 615, the court held that gang probation conditions are “proper when imposed on adult offenders . . . .” (Id. at p. 625.) In Lopez the fact that there was “insufficient [evidence] to show that [Lopez’s] crime was in some manner gang related” did not prevent the court from upholding a gang restriction condition. (Id. at p. 626.) In upholding the restriction, the court considered that despite being in his early 20’s, Lopez’s “consistent and increasing pattern of criminal behavior warranted [the] conclusion by the trial court that [his] disassociation from gang-connected activities was an essential element of any probationary effort at rehabilitation . . . .” (Ibid.)
As Lopez noted, “probation terms have been approved which bar minors from being present at gang gathering areas, associating with gang members, and wearing gang clothing. [Citation.]” (People v. Lopez, supra, 66 Cal.App.4th at p. 624.) “Because ‘[a]ssociation with gang members is the first step to involvement in gang activity,’ such conditions have been found to be ‘reasonably designed to prevent future criminal behavior.’ [Citation.]” (Ibid.) Furthermore, “probationary proscriptions against gang-related conduct are equally proper when imposed upon adult offenders . . . . The path from gang associations to criminal gang activity is open to adults as well as to minors.” (Id. at p. 625.) Moreover, the federal courts “have found curtailments of an adult probationer’s associations with specified groups to be proper where such restrictions serve a rehabilitative purpose, even where the crime in issue was not shown to have been group related. [Citations.]” (Ibid., fn. omitted.)
We find defendant’s case to be similar to Lopez. Like Lopez, defendant is young (19 years of age at the time of sentencing), by his own admission has been shot at, possessed a gun on his person to protect himself, has shown an increasing pattern of criminal behavior, and has been shown to have an affiliation with a criminal street gang. Consequently, we conclude that the gang restriction condition is related to defendant’s successful rehabilitation and has a logical nexus to preventing future criminality.
B. Constitutionality of Probation Conditions
Defendant next argues that the gang-related probation conditions are unconstitutionally vague and/or overbroad.
“A probation condition is constitutionally overbroad when it substantially limits a person’s rights and those limitations are not closely tailored to the purpose of the condition.” (People v. Harrisson (2005) 134 Cal.App.4th 637, 641, citing In re White (1979) 97 Cal.App.3d 141, 146.) “[C]onditions of probation that impinge on constitutional rights must be tailored carefully and ‘reasonably related to the compelling state interest in reformation and rehabilitation . . . .’ [Citation.]” (People v. Delvalle (1994) 26 Cal.App.4th 869, 879.) Similarly, “[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. [Citation.]” (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
Our state Supreme Court recently determined that a probation condition requiring that the defendant “not associate with anyone ‘disapproved of by her probation officer’” was unconstitutionally vague “in the absence of an express requirement of knowledge . . . .” (In re Sheena K., supra, 40 Cal.4th at p. 891.) This was because the condition itself did not notify the defendant in advance with whom she was prohibited from associating, nor did it require that the probation officer communicate such information to her. (Id. at pp. 891-892.) While that court recognized that it had previously approved of reading an implied requirement of knowledge into a similar probation condition, it rejected doing so in its case: “In the interest of forestalling future claims identical to defendant’s based upon the same language, we suggest that form probation orders be modified so that such a restriction explicitly directs the probationer not to associate with anyone ‘known to be disapproved of’ by a probation officer or other person having authority over the minor.” (Id. at p. 892.) Thus, it approved the appellate court’s modification of minor’s probationary conditions to include an explicit requirement of knowledge. (Id. at pp. 879, 892.)
In People v. Garcia (1993) 19 Cal.App.4th 97, the court held that a probationary term requiring that the defendant not associate with users and sellers of narcotics, felons, or ex-felons was constitutionally overbroad in failing to recognize that the defendant may, inadvertently, socialize with individuals unknown to him to fall within such categories. (Id. at p. 102.) Likewise, the court found an implicit recognition of the knowledge requirement within the condition incompatible with constitutional goals: “[T]he rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights, lead us to the conclusion that this factor should not be left to implication.” (Ibid.) Hence, it explicitly modified defendant’s condition to prohibit him from associating with persons he knew to be users or sellers of narcotics, felons or ex-felons. (Id. at p. 103.)
In People v. Lopez, supra,66 Cal.App.4th 615, the defendant’s probationary term No. 15 barred him from any gang association, involvement in gang activities, display of any gang markings, or wearing of gang clothing. (Id. at p. 622.) That court found the term constitutionally vague and overbroad in that it failed to put defendant on proper notice with whom he was prohibited from associating, what he could wear, and what activities in which he might lawfully engage. (Id. at pp. 628-631.) That court found an implied requirement of knowledge on the part of defendant insufficient to overcome the constitutional infirmities: “Without at least the insertion in this aspect of the condition of a knowledge element, [the defendant] was subject to being charged with an unwitting violation of the condition because nothing in it required the police or the probation office to apprise [the defendant] of the ‘identified’ items of gang dress before he was charged with a violation.” (Id. at p. 634.) Hence, the court modified the defendant’s conditions of probation to require that defendant not associate with anyone known by him to be a gang member and not wear clothing known by him to be gang attire. (Id. at p. 638.) With these minor modifications, the court found the defendant’s probationary terms passed constitutional muster. (Ibid.)
The obvious jurisprudential trend is toward requiring that a term or condition of probation explicitly require knowledge on the part of the probationer that he is in violation of the term in order for it to withstand a challenge for constitutional vagueness. We see no reason why this requirement should be limited to the construction of association terms. The People agree that the probation conditions must be read to incorporate the element of knowledge. Therefore, we shall order that defendant’s probationary terms Nos. 29 and 30 be modified to include a specific knowledge requirement as follows: No. 29, “You shall not knowingly be on any school campus or stop within 100 yards unless enrolled there or with prior administrative permission from school authorities”; and No. 30, “Not knowingly wear, display or have in your possession any item associated with gang dress or any items prohibited by the probation officer including but not limited to any insignia, emblem, button, badge, cap, hat, scarf, bandanna or any article of clothing, hand sign or paraphernalia associated with membership or affiliation in any gang.”
We reject defendant’s claim that condition No. 29 should be limited to schools educating minor. As the trial court noted, “the point” of that condition is to prohibit defendant from “engaging in any gang activity that could influence other young people.” We also reject defendant’s unfounded assertion that because condition No. 29 refers to “any school” he would be prevented from obtaining information about a trade school. The condition allows defendant to obtain prior administrative approval if he wishes to visit or get information regarding such a school.
Defendant also asserts that condition No. 31 precluding him from attending court proceedings unless he is a party or subpoenaed witness is overbroad. We disagree. This probation condition furthers the legitimate purpose of “preventing the gathering of gang members to intimidate witnesses at court proceedings.” (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1502, disapproved on other grounds in In re Sade C. (1996) 13 Cal.4th 952, 962, fn. 2.)
C. Improper Delegation of Judicial Authority
Lastly, defendant contends the trial court abused its discretion by delegating judicial authority in term No. 30 to the probation officer to decide what is gang-related dress and paraphernalia. We disagree.
A trial court abuses its discretion when its determination is arbitrary, capricious, or exceeds the bounds of reason under the circumstances being considered. (People v. Welch (1993) 5 Cal.4th 228, 234.) The court has broad discretion to determine whether an eligible defendant is suitable for probation and what conditions should be imposed. (Id. at p. 233.) It is within the court’s discretion to impose any “reasonable” condition that it “may determine” is “fitting and proper to the end that justice may be done . . . .” (Pen. Code, § 1203.1, subd. (j).) Although it is the role of the court to impose probation conditions, Penal Code section 1203, subdivision (a) provides that the probation officer supervises compliance with the conditions. Thus, a nonjudicial board or officer may be authorized to perform “quasi-judicial” powers to determine facts and exercise discretion. The court’s power to delegate this authority may be inferred under principles governing the separation of powers. (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1236.)
The primary purpose of the separation of powers doctrine is to prevent the combination of the fundamental powers of government in the hands of a single person or group. (Manduley v. Superior Court (2002) 27 Cal.4th 537, 557.) However, the doctrine has never required absolute separation, but instead recognizes that the three branches of government are interdependent and permits actions of one branch that may “‘significantly affect those of another branch.’ [Citation.]” (Ibid.) As such, once the trial court imposes conditions of probation, the probation officer will determine both the level and type of supervision consistent with the court-ordered conditions of probation. (Pen. Code, § 1202.8, subd. (a).) However, the probation officer’s discretion is not unlimited. The probation department can perform quasi-judicial powers as long as (1) the exercise of such powers is subsidiary to the power otherwise properly exercised by the court and (2) the court retains ultimate control over its exercise, as by court review. (In re Danielle W., supra, 207 Cal.App.3d at p. 1236.)
Although courts cannot delegate the exercise of their discretion to probation officers, “[p]robation officers have wide discretion to enforce court-ordered conditions, and directives to the probationer will not require prior court approval if they are reasonably related to previously imposed terms.” (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373.) Here, the probation condition challenged by defendant was ordered by the trial court. (Cf. id. at p. 1372 [court never considered new probation conditions added by probation officer, who did not inform court of additional probation terms].) The court exercised its discretion by ordering defendant to not wear and have gang-related dress and paraphernalia and properly delegated authority to the probation officer over the enforcement of this condition. The court retained ultimate control over the probation officer’s discretion by maintaining its power to enforce and modify the probation conditions as needed. Because the court properly delegated quasi-judicial discretion to the probation department to enforce court-ordered probation conditions, it did not abuse its discretion and did not violate the separation of powers doctrine.
III
DISPOSITION
We hereby modify defendant’s conditions of probation to read as follows: No. 29, “You shall not knowingly be on any school campus or stop within 100 yards unless enrolled there or with prior administrative permission from school authorities”; and No. 30, “Not knowingly wear, display or have in your possession any item associated with gang dress or any items prohibited by the probation officer, including but not limited to any insignia, emblem, button, badge, cap, hat, scarf, bandanna or any article of clothing, hand sign or paraphernalia associated with membership or affiliation in any gang.”
As modified, the judgment is affirmed.
We concur: McKINSTER, Acting P.J, .KING, J.