Opinion
A157338
08-21-2020
THE PEOPLE, Plaintiff and Respondent, v. CARLOS R. CRUZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. 18CR002380)
Defendant Carlos Cruz pleaded no contest to various charges arising out of a traffic stop during which drugs were found on his person and in the vehicle in which he was a passenger. At sentencing, the trial court imposed various conditions of probation, including a curfew condition and gang-related conditions. Cruz argues that these conditions were unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutionally overbroad. We will strike the curfew condition and modify one of the gang conditions, but otherwise affirm.
BACKGROUND
The factual background is drawn from the probation report.
On June 29, 2018, at 10:52 p.m., an officer with the Napa County Sherriff's Department conducted a traffic stop of a vehicle in which then 19-year-old Cruz was a passenger. The officer searched Cruz and located a plastic baggie containing 20 Xanax pills. A further search of the vehicle located a backpack containing marijuana, vape cartridges, a digital scale, plastic bags containing what appeared to be cocaine, and $797 in cash, as well as Cruz's identification card. Cruz was on juvenile probation and subject to an electronic search condition, but he refused to unlock his cell phone. When another officer attempted to force Cruz's thumb onto the phone to unlock it, Cruz resisted and the officer placed him in a control hold. Cruz was then arrested.
On July 17, the Napa County District Attorney filed a complaint charging Cruz with possession of cocaine for sale (Health & Saf. Code, § 11351) (count 1), felony possession of marijuana for sale (Health & Saf. Code, § 11359, subd. (c)(3)) (count 2), two counts of resisting a peace officer (Pen. Code, § 148, subd. (a)(1)) (counts 3 & 4), felony possession of a controlled substance (Xanax) for sale (Health & Saf. Code, 11375, subd. (b)(1)) (count 5), and misdemeanor possession of marijuana for sale (Health & Saf. Code, 11359, subd. (b)) (count 6).
On April 25, 2019, Cruz entered into a plea agreement whereby he pleaded no contest to counts 1 and 5 in exchange for five years formal probation, 120 days in county jail, and certain other conditions. The remaining counts were dismissed on the motion of the prosecution.
After the statement "I understand I have the right to appeal the judgment of the court by filing a notice of appeal . . .," the plea agreement has the handwritten word "waived" and Cruz's initials.
In advance of sentencing, a probation report was prepared. The final paragraph of the "Statement of the Offense" section states: "According to a supplemental report, data extraction was conducted on Cruz's cell phone, where messages were discovered between him and other people discussing what appears to be the sales of illegal substances. The officer also notes Cruz says he is making money and has his gang behind him."
The probation report also listed several juvenile offenses and briefly described their dispositions, including three such dispositions that included "gang terms."
In a section titled "Pro-social/Anti-social Involvement," the report stated:
"When asked about his gang involvement, the defendant denies 'banging' and said that he was arrested for 'gang stuff' years ago when he was a juvenile and his probation officers know he did not do anything for the gang. He said he violated his probation 'once' for a gang related issue when he was at the same residence as a gang member, but said he was not there specifically to hang out with that person. He said he is currently housed with Sureños in jail and does not think he needs gang terms as an adult."
And the "Conduct on Supervision" section concluded:
"According to the defendant's current probation officer and previous probation officer, the defendant is known to associate with Northerners, has juvenile gang terms and has violated his probation for associating with a known gang member."
The report concluded by recommending numerous terms of probation, including the following:
"25. You cannot be a member of any criminal street gang. You cannot participate in any criminal street gang activity. You cannot associate with any person known to you as a criminal street gang member. You cannot be at any location where criminal street gang members congregate.
"26. Stay at least 100 yards away from any person whom you know is a criminal street gang member and stay at least 100 yards away from any area where you know criminal street gang members gather."
The other gang-related probation terms were are as follows:
"27. You cannot wear or possess any clothing or other item, or display any hand signs, that you know have criminal street gang significance.
"28. You must allow yourself to be photographed by any Probation Officer or any law enforcement officer.
"29. You must allow yourself to be fingerprinted by any Probation Officer or any law enforcement officer.
"30. You cannot possess anything used to create graffiti. Examples are paint, spray paint, marker pens and liquid shoe polish.
"31. Stay at least 100 yards away from all schools unless you are enrolled in that school.
"32. You cannot get any new criminal street gang related tattoos, brands, burns, piercing or voluntary scarring."
"34. You must obey any curfew set by any Probation Officer."
At sentencing on May 23, the trial court sentenced Cruz to the agreed-upon sentence of formal probation for five years and 120 days in county jail.
Defense counsel objected to the gang conditions under Lent, supra, 15 Cal.3d 481, and also as a violation of Cruz's freedom of association. She also objected to the curfew condition as not "appropriate in adult court." The trial court ultimately imposed both the gang conditions and the curfew condition:
"THE COURT: Yes. So, you know, both the gang conditions and curfew, both implicate First Amendment rights of association, as well as the Court has to apply Lent. And, frankly, number one, his juvenile record reflects a history of violating his probation, along with gang connection. He's barely an adult. He's 19. This crime, according to the report, occurred about 11:00 o'clock at night. So I really think that under Lent and weighing the First Amendment right of association into it, these are clearly conditions that will benefit the defendant, and should be imposed. And I am going to impose them."
On June 28, 2019, Cruz filed an amended notice of appeal, indicating that his appeal is "based on the sentence or other matters occurring after the plea that do not affect the validity of the plea. (Cal. Rules of Court, rule 8.304(b).)" The amended notice attached a request to the trial court for a certificate of probable cause to appeal the gang and curfew probation conditions, a request the trial court granted. The Attorney General agrees that the appeal waiver in Cruz's plea agreement does not preclude this appeal. (See People v. Patton (2019) 41 Cal.App.5th 934, 939-943.)
DISCUSSION
Cruz argues that the gang conditions are invalid under Lent, and also that conditions 25 and 26 are unconstitutionally overbroad because they infringe on his right of free association. Cruz also argues that the curfew condition is invalid under Lent and unconstitutionally overbroad because it infringes on his right to travel.
The Gang Conditions Are Valid Under Lent
The trial court may impose "reasonable conditions, as it may determine are fitting and proper . . . generally and specifically for the reformation and rehabilitation of the probationer." (Pen. Code, § 1203.1, subd. (j).)
Under Lent, a condition of probation is unreasonable 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.' " (Lent, supra, 15 Cal.3d at p. 486.) "Lent's third prong requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality" and instead "contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (In re Ricardo P. (2019) 7 Cal.5th 1113, 1121, 1122 (Ricardo P.).) And as the Supreme Court has acknowledged, "courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense. (People v. Lopez (1998) 66 Cal.App.4th 615, 623-625 [upholding condition that defendant avoid gang involvement].)" (Id. at p. 1122.)
"A reviewing court reviews a trial court's imposition of a probation condition under one of two different standards. The applicable standard depends on the condition's effect on a defendant's civil liberties. ' "[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." ' (People v. Olguin (2008) 45 Cal.4th 375, 384.) All others are reviewed for abuse of discretion, i.e., '[w]e do not apply such close scrutiny in the absence of a showing that the probation condition infringes upon a constitutional right . . . . [and] absent such a showing . . . simply review[ ] such a condition for abuse of discretion, that is, for an indication that the condition is "arbitrary or capricious" or otherwise exceeds the bounds of reason under the circumstances.' (Ibid.)" (People v. Brandão (2012) 210 Cal.App.4th 568, 573, fn. omitted.)
The parties agree that the gang conditions here satisfy Lent's first and second prongs, but they disagree as to whether they "forbid[] conduct which is not reasonably related to future criminality." (Lent, supra, 15 Cal.3d at p. 486.)
Cruz first argues that there is no evidence that the "gang" referenced in the probation report was a "criminal street gang" within the meaning of Penal Code section 186.22, subdivision (f). But this clearly has nothing to do with whether the conduct forbidden by the gang conditions is "reasonably related to future criminality."
Cruz also argues that the evidence in the probation report was insufficient to justify imposition of the gang conditions. We disagree. Cruz's juvenile record included three previous offenses with "gang terms" as part of their dispositions. Cruz had evidently violated these previous gang conditions on at least one occasion, telling the probation officer that "he was arrested for 'gang stuff years ago when he was a juvenile," in what appears to be a reference to an incident in which "he was at the same residence as a gang member, but he was not there specifically to hang out with that person." Most importantly, the probation report indicates that in connection with the instant offenses, "messages were discovered [on Cruz's cell phone] between him and other people discussing what appears to be the sales of illegal substances. The officer also notes Cruz says he is making money and has his gang behind him." As the probation report summarized the evidence: "According to the defendant's current probation officer and previous probation officer, the defendant is known to associate with Northerners, has juvenile gang terms and has violated his probation for associating with a known gang member." Given this gang-related evidence, the trial court did not abuse its discretion in concluding that the gang conditions were "reasonably related to future criminality."
Our decision in In re Edward B. (2017) 10 Cal.App.5th 1228, on which Cruz relies, is distinguishable. In that case, the only allegedly gang-related information in the probation report was the fact that the minor immediately asked the arresting officer "how much time he would have to serve," together with statements by the minor's father that one of the minor's friends, " 'whom he believes his son, no longer associates with, has some involvement with a criminal street gang,' " the statement that an " ' "older individual" ' " drove the minor around prior to the offense, and the father's belief that the minor was "directed" to commit the offense—information that we characterized as "speculation" that did not amount to "evidence of gang affiliation or association with gang members or risk of gang involvement." (Id. at pp. 1234, 1236.) In this case, the evidence in the probation report showed both "association with gang members" and "risk of gang involvement." The gang conditions were not unreasonable under the third prong of Lent.
The Gang Conditions Are Not Constitutionally Overbroad As Modified
Cruz next argues that two of the gang conditions—25 and 26, which require Cruz to stay 100 yards from and refrain from associating with anyone he knows to be a criminal street gang member—are unconstitutionally overbroad burdens on his right to freedom of association. Noting that condition 9 of his probation requires him to "[s]eek and maintain gainful, full-time employment, school or vocational training," he argues that he will have to attend work or school "even if he knows that there is a gang member near him in either of these two settings." Cruz requests that we strike the conditions, or that we modify them to indicate that "casual and incidental contact with known gang members at work or school are not proscribed."
"A limitation on the right to associate which takes the form of a probation condition is permissible if it is '(1) primarily designed to meet the ends of rehabilitation and protection of the public and (2) reasonably related to such ends.' " (People v. Lopez (1998) 66 Cal.App.4th 615, 628 (quoting U.S. v. Bolinger (9th Cir. 1991) 940 F.2d 478, 480).) For the reasons already discussed, we reject Cruz's argument that we should strike the gang conditions as not reasonably related to rehabilitation and protection of the public.
With respect to condition 25, prohibiting associating with known gang members, the modifications Cruz proposes are unnecessary. When interpreting a probation condition, we rely on "context and common sense" (In re Ramon M. (2009) 178 Cal.App.4th 665, 677), and give the condition " 'the meaning that would appear to a reasonable, objective reader.' " (People v. Olguin, supra, 45 Cal.4th at p. 382.) No reasonable reader would understand the condition to forbid casual contact with known gang members made necessary so that Cruz can work or attend school. Interpreted reasonably, condition 25 is not constitutionally overbroad. However, Cruz's argument is well-taken with respect to condition 26, which requires him to stay 100 yards from known gang members and contains no exceptions. We will therefore modify condition 26 to read: "Except as necessary to comply with condition 9, stay at least 100 yards away from any person whom you know is a criminal street gang member and stay at least 100 yards away from any area where you know criminal street gang members gather."
The Curfew Condition Is Not Reasonable Under Lent
Cruz also argues that the curfew condition is unreasonable under Lent and is unconstitutionally overbroad. The Attorney General concedes that the curfew condition is unreasonable under Lent and agrees that we should strike the condition.
We agree. The only justification offered by the trial court in rejecting Cruz's objection to the curfew condition was that the crime took place at 11:00 p.m., and "[c]riminal activity that we run into happens at night." This is not sufficient to satisfy Lent's third prong, as we recently explained. (See People v. Nassetta (2016) 3 Cal.App.5th 699, 703-707 [striking similar curfew condition as invalid under Lent].) Accordingly, we will strike the condition.
DISPOSITION
Condition 26 is modified to read: "Except as necessary to comply with condition 9, stay at least 100 yards away from any person whom you know is a criminal street gang member and stay at least 100 yards away from any area where you know criminal street gang members gather." Condition 34 is stricken. As so modified, the judgment is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.