Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. No. SS062536
Bamattre-Manoukian, ACTING P.J.
Defendant Javier Ruiz Maravilla pleaded no contest to second degree robbery (Pen. Code, § 211), and admitted that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The court placed defendant on probation for five years with various terms and conditions. One of the conditions is that defendant is not to be present at any criminal court proceeding or at any criminal courthouse building or criminal courtroom unless he is scheduled for a court hearing or has the express permission of his probation officer.
All further statutory references are to the Penal Code.
On appeal, defendant challenges the imposition of the probation condition restricting his presence in courthouse buildings. He contends that the condition is unreasonable and violates his constitutional rights to travel and attend court proceedings. We disagree with defendant’s contentions and, therefore, affirm the judgment.
BACKGROUND
Around 9:03 p.m. on August 25, 2006, Salinas police officers responded to Elm Drive due to a reported robbery. The reporting party told the officers that he had witnessed Jorge Garcia get robbed by a man who got out of a white Chrysler sedan. The man pulled a dark object from his pocket and Garcia handed the man his wallet. The man, who was wearing a red hat, a red or black shirt, and dark shorts, fled northbound in the Chrysler. Garcia told the officers that the man had demanded his wallet and, when Garcia demurred, pulled out a handgun from his waistband. Garcia gave up his wallet because he was frightened; he did not recognize the man but thought that he was a gang member based on his clothing. He said that his wallet contained $210 in cash.
A short time later, officers stopped a vehicle matching the description given by Garcia and the witness. Defendant was the driver and Sandra Ruiz was the passenger. Garcia was transported to the location of the traffic stop and he positively identified defendant as the man who robbed him. Defendant and Ruiz were transported to the police station. There, defendant said that he had parked his car on Elm Street and got out to smoke a marijuana cigarette. After Garcia passed him, and did not respond to his greeting, he felt “disrespected” and demanded Garcia’s wallet. He returned to his car after getting the wallet and told Ruiz that he had just robbed somebody. He drove away and threw the wallet out the window when he discovered there was no money in it. He was later pulled over by the police. He admitted that he is a Salinas East Market Norteno gang member, but he denied that the robbery was committed for the benefit of the gang or that it was planned.
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 second degree robbery (§ 211; count 1), and actively participating in a criminal street gang (§ 186.22, subd. (a); count 2). The complaint further alleged that the robbery was committed for the benefit of or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) On October 4, 2007, defendant pleaded no contest to count 1, and admitted that the offense was committed for the benefit of a criminal street gang, on condition that he be placed on probation. The probation officer recommended that defendant be placed on probation for three years under various conditions. As Salinas Police Department records indicate that defendant is associating with gang members, the probation officer recommended that one gang condition of probation be that defendant “shall not be present at any court proceeding or at any courthouse unless [he is] scheduled for a court hearing or ha[s] the express permission of [his] Probation Officer.”
On November 3, 2006, the court suspended imposition of sentence and granted defendant probation for five years with various terms and conditions. When the court stated that one of the probation conditions would be that defendant “not be present in any court proceeding, unless . . . scheduled,” defendant objected to the condition, contending that it was a violation of his constitutional rights. The court responded, “I’m not going to impose that condition now. I will give both sides a chance to brief the issue, and we’ll be back in about three to four weeks and we can take that issue up then.” Defendant accepted the other terms and conditions of probation, and the court dismissed count 2 on the prosecutor’s motion and continued the matter.
The prosecutor filed points and authorities in support of the contested probation condition on November 21, 2006, and defendant filed opposition on December 18, 2006. The parties argued the matter at a hearing on January 12, 2007, and the court took the matter under submission. On January 19, 2007, the court ruled as follows.
“Mr. Maravilla, it is clear from the case law, and just from common sense, that whenever probation conditions impinge or affect people’s constitutional rights, like your right to travel, the right to go places, and do things, that’s a serious issue; and no judge or court should take that lightly. Certainly that’s one of the factors that I have to consider. But another – another aspect of this, that’s no surprise to anybody in this courtroom, and I’m sure it’s not to you either, that we do have problems and issues with people that are either gang members, or associates here, right here in this courthouse. And we’ve had people slashed in the courtroom; and it’s been a while since that has happened. We had –heard last week at a fairly lengthy in camera hearing, I heard about kites being passed right out here in the restroom, in this building, apparently notes being left for people. And I have actually seen communication between – I don’t know if the people out in the audience were gang members – but I have seen communication between people that were waiting – awaiting sentencing here in my courtroom, and people out in the audience, and that was – could have been gang-related communications. So there’s – there’s no doubt that having gang members that are doing inappropriate things in courthouses is not a good thing. And I would say that this is not a condition as normal – many times probation recommends – either it is agreed to or because they think it’s appropriate, based on the person’s history, they recommend gang conditions, and there are usually about three or four others that are fairly common. This one is uncommon. I would say that I would not impose this condition on every person that came before me for sentencing on a gang-related case, because I don’t think that’s appropriate. I think it – I think it’s more appropriate to analyze each case on a case-by-case basis, and then tailor the probation conditions for that person.
“You yourself, even though you don’t have that significant a record, this offense involved – you did admit a gang enhancement; you had many contacts with law enforcement over the years for gang contacts. You’re an admitted, I believe – I won’t ask you that now, but it’s – it appears, based on what happened, when you were housed at the jail, the comments you made, that you’re still a member of the S.E.M. gang. So I do believe that the condition that – I’m going to tailor that condition very narrowly, because I’m required by law to do that, and for your benefit as well.
“The condition that I will impose, and, again, I’m doing this on a case-by-case basis – I think it’s rationally related to Mr. Maravilla’s rehabilitation and his successful completion of probation – you shall not be present at any court proceeding or any courthouse, unless you are scheduled for court hearing or have an express permission from your probation officer.
“Now, in the context of, if you go to the admin building to pay your taxes or for some other reason, you would not be in violation of your probation. But on the other hand if you come into this building, unless you’re on the calendar or unless you – you received permission from your probation officer before, then you would be in violation of probation.
“Now, if you’re on the dependency calendar or, you know, then – then you’re not [in] violation; or for some reason there’s a family member that’s in court and you want to be there to support them, then you would need to clear that through probation officer.”
The court asked defendant if he accepted the probation condition, and defendant responded, “Yes, Your Honor.” The court then amended the probation condition by “chang[ing] that to read at any courthouse building or courtroom. That would exclude the admin building.” “I think it actually probably would be appropriate to put criminal – those courtrooms that conduct criminal cases.” “If he wants to be at dependency court on a Friday, or at the Monterey civil courtrooms, that would not be a violation.”
DISCUSSION
Defendant contends that the probation condition restricting his presence at criminal court buildings, courtrooms and proceedings 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 association, it serves a rehabilitative purpose by controlling his access to gang meetings and gatherings, and does not limit his constitutional right to access to the courts.
“Probation is governed by statute.” (People v. Balestra (1999) 76 Cal.App.4th 57, 64 (Balestra).) That statute, section 1203.1, states in pertinent part: “The court, or judge thereof, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding the maximum possible term of the sentence, . . . and upon those terms and conditions as it shall determine.” (§ 1203.1, subd. (a).) “The court may impose and require any or all . . . 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, . . . and generally and specifically for the reformation and rehabilitation of the probationer, . . .” (§ 1203.1, subd. (j); see also People v. Jungers (2005) 127 Cal.App.4th 698, 702 (Jungers).)
“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.” [Citations.]” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121 (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).) “The test is clearly in the conjunctive, that is, the three factors must all be found to be present in order to invalidate a condition of probation.” (Balestra, supra, 76 Cal.App.4th at p. 65, fn. 3; 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.)
“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.” ’ [Citations.]” (People v. Peck (1996) 52 Cal.App.4th 351, 362; Jungers, supra, 127 Cal.App.4th at p. 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. [Citations.]” (Jungers, supra, at p. 704; see also In re Sheena K. (2007) 40 Cal.4th 875, 890.)
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; Jungers, supra, 127 Cal.App.4th at p. 702.)
Probation conditions placing blanket prohibitions upon a person’s right to travel may infringe on the First Amendment. (In re White (1979) 97 Cal.App.3d 141, 148 (White).) However, we find that the probation condition in this case is not akin to the blanket prohibition in White. In that case, the defendant had been convicted of prostitution and the court imposed a condition of probation excluding her from certain areas of the City of Fresno, at any time of the day or night. On appeal, the court found this condition was unreasonable because it was impermissibly broad. (Id. at p. 147.) The defendant, who could have any number of reasons for being in the specified areas, and in fact had been living in one of the prohibited areas, was being restricted by a condition that was “so sweeping and so punitive that it [was] unrelated to rehabilitation.” (Id. at p. 148.) Even so, the court did not simply strike the condition; it returned the matter to the trial court to permit that court to narrow the specific conditions in question if it chose to do so. (Id. at p. 151.)
Here, the challenged condition of probation restricting defendant’s presence in criminal courthouses is very narrow. Some restrictions on constitutional rights “are required by legitimate governmental demands” (White, supra, 97 Cal.App.3d at pp. 149-150), and are valid as long as they are “narrowly drawn so as to correlate more closely with the purposes contemplated” by the governmental interest. (Id. at p. 150.) Given the court’s tailoring of the challenged condition to the defendant in this case, it is not overbroad in its reach and we do not find it objectionable to the extent that it includes lawful activity within its ambit.
The state has a compelling interest in the protection of defendants and witnesses in criminal proceedings which justifies the restrictions on defendant’s freedom of travel and to attend criminal court proceedings. In addition, the challenged probation condition is reasonably related to the compelling state interest in defendant’s reformation and rehabilitation, as defendant admitted that his offense was committed for the benefit of a criminal street gang and the condition restricts defendant from attending and participating in gang gatherings and activities in “criminal” courtrooms and “criminal” proceedings. The condition is not overbroad, as the court did not impose a complete ban on defendant’s presence in any courthouse or courtroom. In fact, the court limited the restriction to the criminal courthouse and criminal courtrooms and indicated by example how the ordered restriction applied and did not apply. The court also specifically allowed defendant to seek permission to attend criminal court proceedings in order to support any family members. As the probation condition was carefully tailored, and it is 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, the condition was properly imposed. (People v. Lopez (1998) 66 Cal.App.4th 615, 628; see also People v. Delvalle (1994) 26 Cal.App.4th 869, 879.) We find no need to strike or modify it further.
As amended by the trial court, the probation condition essentially states: Defendant is not to be present at any criminal court proceeding or at any criminal courthouse building or criminal courtroom unless he is scheduled for a court hearing or has the express permission of his probation officer.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., Duffy, J.