Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. No. SS062695
Premo, J.
Defendant Luis DeHaro pleaded guilty to one felony count of taking a vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a)). The court placed defendant on probation for three years with various terms and conditions, including a number of “gang related” conditions.
On appeal, defendant challenges the imposition of three of these “gang related” conditions. Defendant claims that one of the conditions violates his constitutional rights to travel and attend court proceedings. Defendant argues that the other two conditions are unconstitutionally vague as they do not require personal scienter on his part. We agree with defendant’s contentions with respect to the probation condition restricting his access to court buildings, but disagree as to the remaining two conditions. As modified, we affirm the judgment.
BACKGROUND
On September 19, 2006, Salinas police officers observed defendant driving 45 miles per hour in a residential area. Defendant squealed his tires as he turned a corner. Defendant stopped in front of a house prior to officers using their lights and siren to initiate a traffic stop.
As the officer approached the vehicle, he observed defendant using a screwdriver to turn off the vehicle’s ignition. The officers were notified by dispatch that the vehicle had been reported stolen, and defendant was then taken into custody. In searching defendant, officers discovered marijuana in an envelope in his pocket and more marijuana concealed in his sock. A number “13” was tattooed on defendant’s left hand, and defendant was wearing a blue rosary, a blue belt and had a blue bandana in his pocket. The officer noted that these items are commonly used by Sureño gang members.
Defendant told police that he had borrowed the vehicle from a friend named “Jose.” When asked further questions about Jose’s identity and residence, defendant declined to answer. Defendant was transported and booked into county jail.
The facts underlying defendant’s convictions are taken from the summary of the police report in defendant’s probation report.
Defendant was charged by felony complaint with taking a vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a), count 1); actively participating in a criminal street gang (Pen. Code, § 186.22, subd. (a), count 2); and a misdemeanor count of possessing not more than one ounce of marijuana while driving (Veh. Code, § 23222, subd. (b), count 3). The complaint further alleged that the vehicle theft was committed for the benefit of or in association with a criminal street gang. (Pen. Code, § 186.22, subd. (b)(1).)
On November 30, 2006, defendant pleaded no contest to count 1, on condition that he receive felony probation with “gang terms and conditions.” The probation officer recommended that defendant be placed on probation for three years under various conditions. The probation report noted that, on November 28, 2006, a Salinas police officer completed a “gang supplement” on defendant and concluded that defendant was an “active participant of the Sureño criminal street gang.” Based on defendant’s gang involvement, the probation officer recommended imposing various gang conditions of probation, including the three conditions challenged herein.
The probation report states: “[D]efendant has admitted to being a Sureño gang member during a past interview, . . . he admits to associating with Sureño’s [sic], has Sureño tattoos, has been housed in an active Sureño ‘lock-down’ pod at county jail, wears gang related clothing and has been contacted in known gang gathering areas . . . .”
On January 18, 2007, the court suspended imposition of sentence and granted defendant probation for three years with various terms and conditions, including the following:
“[Probation Condition No. 20]: You’re ordered not to associate with any individuals known to be gang members or drug users or those known to be on any form of probation or parole.”
“[Probation Condition No. 21]: You’re ordered not to remain in any vehicle either as a passenger or driver which is known or suspected to be stolen or to contain any firearm, ammunition or illegal weapon. [¶] . . . [¶]
“[Probation Condition No. 24]: You shall not be present at any court proceeding or any court house unless you are scheduled for a court hearing or have the express permission of your probation officer.”
Defense counsel objected to probation condition No. 24, contending that it was a violation of defendant’s constitutional rights. The court did not directly respond to defendant’s objection, but after reciting the probation conditions, advised defense counsel that he could “come back and ask for a modification.” Defense counsel responded that he would, instead, file an appeal. Defendant accepted the other terms and conditions of probation, and the court dismissed the remaining charges, enhancements and special allegations pursuant to Penal Code section 1385.
Although defense counsel did not object below to probation conditions Nos. 20 and 21, defendant’s objection to those conditions as being unconstitutionally vague may be asserted for the first time on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 885.)
DISCUSSION
A. Restricting Defendant’s Presence at Court Buildings, Courtrooms and Proceedings (Probation Condition No. 24)
Defendant contends that probation condition No. 24 is improper for three reasons. First, it is unreasonable and overbroad in that it is unrelated to either his offense or to any conduct on his part that would justify it. Secondly, it violates his fundamental constitutional right to travel. Third, it violates his constitutional right of access to court proceedings. The Attorney General contends that the condition is proper as it directly relates to defendant’s gang affiliation and does not prohibit his constitutional right to access to the courts, since he may enter the courthouse with his probation officer’s permission or if he has a scheduled court hearing.
“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. Lent (1975) 15 Cal.3d 481, 486, quoting People v. Dominguez (1967) 256 Cal.App.2d 623, 627.) The touchstone is whether the condition is reasonable under all of the circumstances. (People v. Welch (1993) 5 Cal.4th 228, 234.) A court violates these standards only “when its determination is arbitrary or capricious or ‘ “exceeds the bounds of reason, all of the circumstances being considered.” ’ ” (Ibid.) 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.” (People v. Lent, supra, 15 Cal.3d at p. 486.)
“Because probation is a privilege and not a right [citation], a probationer is not entitled to the same degree of constitutional protection as other citizens. Accordingly, even a probation condition which infringes a constitutional right is permissible where it is ‘ “necessary to serve the dual purpose of rehabilitation and public safety.” ’ ” (People v. Peck (1996) 52 Cal.App.4th 351, 362; People v. Jungers (2005) 127 Cal.App.4th 698, 703.) “However, probation conditions that restrict constitutional rights must be carefully tailored and ‘reasonably related to the compelling state interest’ in reforming and rehabilitating the defendant.” (People v. Jungers, supra, at p. 704; see also In re Sheena K., supra, 40 Cal.4th at p. 890.) A probation condition suffers from constitutionally fatal overbreadth where it is not sufficiently narrowly drawn. (People v. Lopez (1998) 66 Cal.App.4th 615, 628-629 (Lopez).)
Gang-based probation conditions promote the goal of rehabilitation and public safety by forbidding conduct reasonably related to future criminality. (Lopez, supra, 66 Cal.App.4th at pp. 625-626.) “[P]robationary proscriptions against gang-related conduct are equally proper when imposed upon adult offenders . . . [t]he path from gang associations to criminal gang activity is open to adults as well as to minors.” (Id. at p. 625.) In addition, since gang members are likely to appear at criminal proceedings in an attempt to intimidate witnesses and jurors, or to threaten defendants from rival gangs, the state certainly has a compelling interest in protecting those defendants, witnesses and jurors in such proceedings. Because of those concerns, the state may be justified in restricting the freedom of travel and right to attend criminal court proceedings for offenders with demonstrated gang associations.
Although defendant did not admit in the instant proceedings that he was a gang member, there is substantial evidence of his association with gang members, his gang related tattoos and clothing, as well as his being housed in a Sureño “lock-down” pod at Monterey County Jail. Due to the strong evidence of defendant’s gang associations, restrictions on his right to attend criminal court proceedings are justified by the state’s compelling interest in protecting the defendants, jurors and witnesses involved in criminal proceedings.
The probation condition imposed here, however, is not restricted to the criminal courthouse or criminal proceedings, where it seems most likely that a gang member would appear in order to attempt to intimidate the jurors and adverse witnesses. Instead, it prohibits defendant’s presence in any courthouse or courtroom, absent his probation officer’s prior approval. Consequently, the probation condition was not carefully tailored, and was not reasonably related to the compelling state interest in protection of defendants and witnesses in criminal proceedings as well as in this defendant’s reformation and rehabilitation. (Lopez, supra, 66 Cal.App.4th at p. 628; see also People v. Delvalle (1994) 26 Cal.App.4th 869, 879.)
In order to render the condition constitutional, it must be modified to limit its scope to criminal court proceedings, criminal courthouse buildings and criminal courtrooms.
B. Preventing Association with Described Individuals and Preventing Defendant from Remaining in a Stolen Vehicle or Vehicle Containing Firearms or Illegal Weapons (Probation Conditions Nos. 20 and 21)
According to defendant, the probation conditions Nos. 20 and 21 are overbroad and vague because they “do not give [him] notice of what conduct is prohibited . . . in that knowledge by [him] is not required for [any of the] condition[s], thus subjecting [him] to . . . ‘guess’ [what behavior] would cause a violation of the terms and conditions of his probation.” (Italics added.) Consequently, he argues, the conditions should be stricken or modified to require scienter on his part. The Attorney General argues that these conditions are not vague and that the term “known,” set forth in each condition, is reasonably interpreted as “known to him,” not known “to the population at large.”
Conditions of probation have been upheld even though they restrict a probationer’s exercise of constitutional rights so long as they are narrowly drawn to serve the important interests of public safety and rehabilitation (People v. Keller (1978) 76 Cal.App.3d 827, 839, disapproved on other grounds by People v. Welch, supra, 5 Cal.4th at p. 237) and are specifically tailored to the individual probationer. (People v. Smith (2007) 152 Cal.App.4th 1245, 1250.) A probation condition suffers from constitutionally fatal overbreadth where it is not sufficiently narrowly drawn. (Lopez, supra, 66 Cal.App.4th at pp. 628-629.) An example is a condition that prohibits associating with gang members who are not known to be gang members or displaying gang indicia that are not known to be gang related. (Ibid.) The concept of unconstitutional vagueness is related to the concept of unconstitutional overbreadth and distinctly focuses on fair notice of what conduct is proscribed. (Lopez, supra, at p. 630.)
As the California Supreme Court has explained, the “underlying concern” of the constitutional vagueness doctrine “is the core due process requirement of adequate notice. ‘No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.’ ” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115 (Acuna), quoting Lanzetta v. New Jersey (1939) 306 U.S. 451, 453.) Acuna involved the defendants’ attack on a preliminary decree obtained by the City of San José that enjoined them from associating with other gang members. At issue was the existence of a knowledge requirement in the injunction. There, the court acknowledged that “the City would have to establish a defendant’s own knowledge of his associate’s gang membership to meet its burden of proving conduct in violation of the injunction. Far from being a ‘classic’ instance of constitutional vagueness, however, we think the element of knowledge is fairly implied in the decree. To the extent that it might not be, we are confident that the trial court will . . . impose such a limiting construction . . . by inserting a knowledge requirement should an attempt be made to enforce that paragraph of the injunction.” (Acuna, supra,at p. 1117, italics omitted.)
Probation conditions Nos. 20 and 21 have knowledge requirements. They prohibit defendant from associating with persons “known to be” gang members, drug users or persons on probation or parole and prohibit from remaining in a vehicle “known or suspected” to be stolen or to contain any firearms or illegal weapon. These conditions are constitutionally sufficient as imposed, since each incorporates a knowledge requirement, either explicitly or implicitly.
DISPOSITION
Probation condition No. 24 is modified to read:
“Condition No. 24: Defendant shall not be present at any criminal court proceeding or at any criminal courthouse building or criminal courtroom unless you are scheduled for a court hearing or have the express permission of your Probation Officer.”
As so modified, the judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.