Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. FF825761
Bamattre-Manoukian, Acting P.J.
Defendant Louis Fernando Ortiz was charged by felony complaint with second degree robbery (Pen. Code, §§ 211-212.5, subd. (c)). Pursuant to a negotiated plea agreement, defendant pleaded no contest to the robbery charge and admitted that he committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions. Among other things, the trial court ordered defendant (1) to submit to chemical testing as directed by the probation officer, (2) to abstain from the use of drugs and alcohol and to stay away from places “where alcohol is the chief item of sale,” (3) to submit to an official search of his personal property at any time, and (4) to refrain from appearing at court proceedings except in limited circumstances. On appeal, defendant contends that these conditions are invalid and must be stricken from the probation order. We agree that the chemical testing and alcohol conditions must be stricken. Additionally, we modify the court appearance condition to comply with constitutional standards. We will affirm the judgment as so modified.
Further unspecified statutory references are to the Penal Code.
I. BACKGROUND
As defendant pleaded no contest, the following factual summary is taken from the probation report.
On June 7, 2008, Lisa Giles approached 18-year-old Adan Salinas at a gas station and requested a ride to her aunt’s house. While en route, Giles asked Salinas if he had any money and Salinas paid Giles $20 to accompany him to a dance that evening. Salinas stopped the car at the corner of Hadley Court and Giles got out of the car. She told Salinas she would return in a few minutes.
Shortly thereafter, approximately 10 Norteño gang members, including defendant, Daniel Juarez, Felipe Ocampo, and Juan Amezcua, surrounded Salinas’s car. Three members of the group pulled Salinas out of the car and held a knife to his chest. One member told Salinas to hand over his money “ ‘or I’m going to put it in you.’ ” Salinas surrendered approximately $400 in cash, his cellular phone, and a cowboy hat. The police arrested Ortiz, Juarez and Ocampo in the area of Juarez’s residence on Hadley Court. Amezcua was arrested leaving the area. The police found Salinas’s cellular phone and cowboy hat in Juarez’s residence.
Giles told police that while in Salinas’s car, Salinas asked her “ ‘how much.’ ” She believed that to mean “ ‘how much for sex.’ ” Giles told Salinas to stop the car after he touched her breast. She then informed defendant and the others of Salinas’s actions. Police officers identified all five individuals (defendant, Giles, Juarez, Ocampo and Amezcua) as being Norteno gang members and/or associates. Defendant denied being involved in the robbery.
Defendant, 21 at the time of sentencing, told the probation officer that he began drinking alcohol at age 16. He stated that at the time of his arrest, he drank approximately two beers each month. Defendant denied using drugs. Defendant claimed association with Norteno gang members when he was 15 and 16, but denied any contact with gang members in the last five years.
In 2007 and 2008, according to the Gilroy Police Department, defendant “was contacted by police officers on numerous occasions while dressed in gang attire, in the company of other gang members and during which he admitted to being a gang member.” Defendant has one gang-related tattoo.
At the time of sentencing, defendant had three other criminal matters pending: (1) possession of alcohol while under the age of 21 (Bus. & Prof. Code, § 25662, subd. (a)), (2) a theft-related matter (§§459, 460, subd. (b), 484, 487, subd. (a)), and (3) a municipal code violation. His only prior adult conviction was a misdemeanor conviction for petty theft. Defendant’s juvenile record includes, inter alia, petty theft (§§ 484, 488), assault (§ 245, subd. (a)(1)), and battery (§§ 242, 243, subd. (c)), but no drug or alcohol related convictions.
II. DISCUSSION
“The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and what conditions should be imposed.” (People v. Welch (1993) 5 Cal.4th 228, 233 (Welch); see also People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal) [pursuant to section 1203.1, “courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety”].) Thus, we review the trial court’s imposition of each probation condition for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) “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), italics added; see also Olguin, supra, 45 Cal.4th at p. 379.) “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.]’ ” (Carbajal, supra, 10 Cal.4th at p. 1121; People v. Jungers (2005) 127 Cal.App.4th 698, 702 (Jungers).)
A. Drug and Alcohol Conditions
Defendant challenges the dual requirements that he submit to chemical testing and that he abstain from consumption of drugs and alcohol. At sentencing, defense counsel objected to the chemical testing condition but did not specifically object to the alcohol ban. The Attorney General argues that the latter issue is therefore forfeited. Our Supreme Court has held that the failure to object to the reasonableness of a probation condition in the trial court waives the claim on appeal. (Welch, supra, 5 Cal.4th at p. 237.) Defendant further contends, however, that if objection was required to preserve his claim, his trial counsel’s failure to object to the alcohol condition constitutes ineffective assistance of counsel. We thus address defendant’s claim on the merits to the extent necessary to consider the ineffective assistance claim, and we consider together the reasonableness of both conditions.
In the presentence report, the probation officer recommended both chemical testing and the alcohol ban. At sentencing, the trial court questioned the necessity of the chemical testing condition:
“[THE COURT:] This is kind of for both lawyers, I have a question mark by chemical testing; I don’t think there was anything involving drugs at all.
“[DEFENSE COUNSEL]: I would ask the court to strike that.
“[PROSECUTOR]: There’s a 25562A B&P Code that is pending.
“THE COURT: Okay
“There was a 647F, 11357B.
“All right.
“I’ll order the defendant to submit to chemical testing as directed by the probation officer.” The trial court then proceeded to list additional probation conditions, including the alcohol ban, as follows: “You’re not to possess or consume alcohol or illegal drugs or knowingly be anywhere illegal drugs are used or sold [or] where alcohol is the chief item of sale.”
As set forth by our Supreme Court, a probation condition that requires or forbids conduct that is not itself criminal is valid if it is “reasonably related either to the crime of which the defendant is convicted or to the goal of deterring future criminality.” (Carbajal, supra, 10 Cal.4th at p. 1123; Lent, supra, 15 Cal.3dat p. 486; see also People v. Kiddoo (1990) 225 Cal.App.3d 922, 927-928, disapproved on other grounds in Welch, supra, 5 Cal.4th at pp. 232-233, [if the underlying crime did not involve alcohol, a probation condition banning the use of alcohol “must reasonably be related to future criminal activity”].) A probation condition that serves the statutory purpose of “reformation and rehabilitation of the probationer” (§1203.1, subd. (j)) necessarily relates to “future criminality” of the probationer. (People v. Balestra (1999) 76 Cal.App.4th 57, 65 (Balestra).)
In this case, the prosecutor noted a pending charge for minor in possession of alcohol (Bus. & Prof. Code, § 25662, subd. (a)) to support chemical testing and, presumably, the ban on alcohol use. The trial court then referenced, unprompted, two additional violations: (1) public intoxication (§ 647, subd. (f)) and (2) possession of less than one ounce of marijuana (Health & Saf. Code § 11357, subd. (b)). A criminal history that reflects all three of these crimes might suggest the need for “rehabilitation” related to the defendant’s use of drugs and alcohol. The record, however, contains no support for the trial court’s reference to public intoxication and marijuana possession. Aside from the minor in possession violation (issued when defendant was 20 years of age), the charges pending at the time of defendant’s sentencing were not alcohol or drug related. Defendant’s prior criminal history, including his juvenile record, does not include any transgressions involving drugs or alcohol.
A portion of the probation report related to defendant’s arrest history is blacked out. Defendant posits that the blacked-out portion referenced another Louis Ortiz or similarly-named individual and contained references to the public intoxication and marijuana possession arrests. We will not speculate on the contents of this part of the report. Regardless, we cannot find, and the Attorney General does not point to, any evidence of either of these violations in defendant’s record. The Attorney General cites only the reporter’s transcript as support for the assertion that the sentencing court “noted” that defendant’s criminal history “showed prior public intoxication and marijuana possession arrests.”
The Attorney General suggests that there is “a possible link between alcohol and drug ingestion and manifestation of appellant’s criminal conduct in the context of his criminal street gang involvement.” We find no such connection. Possession of alcohol while underage does not support a reasonable inference that defendant presently uses or will use illegal drugs, or that drug or alcohol use will contribute to future criminal behavior. There is no indication that drugs or alcohol played a role in the robbery of Salinas, in any previous crime, or in defendant’s gang activities. Moreover, as defendant’s only alcohol-related crime was being in possession while underage, and there is no present indication of alcohol abuse, reliance on a rehabilitative purpose to impose the condition is greatly weakened by the fact that defendant is now 21.
In sum, we find no nexus between the challenged probation conditions and either the second degree robbery or defendant’s future criminality. Additionally, it appears that the sentencing court, without correction or objection from defense counsel, erroneously relied on unproven public intoxication and marijuana possession violations in imposing the drug and alcohol conditions. We therefore conclude that the chemical testing and alcohol ban are unreasonable and must be stricken from the probation order. (See, e.g., Kiddoo, supra, 225 Cal.App.3d at p. 928 [striking condition banning alcohol consumption after finding it not reasonably related to the defendant’s future criminality].)
B. Search Condition
Defendant contends the trial court further erred by imposing a search condition requiring him to submit to a warrantless search by a peace officer at any time. As with the drug and alcohol conditions, above, the Attorney General claims that the issue was forfeited by defendant’s failure to object in the trial court. (See Welch, supra, 5 Cal.4th at p. 237.) Defendant again raises a claim of ineffective assistance of counsel and so we examine the merits.
“Probation is not a right, but a privilege.’” (In re York (1995) 9 Cal.4th 1133, 1150.) Thus, when warrantless search conditions are imposed, “it is established that the individual ‘consents to the waiver of his Fourth Amendment rights in exchange for the opportunity to avoid service of a state prison term.’ ” (Ibid.) It is well-settled that the search condition is fundamental to deterring further offenses and to monitoring the probationer’s compliance with the terms of probation. (See, e.g., Olguin, supra, 45 Cal.4th at p. 380; People v. Robles (2000) 23 Cal.4th 789, 795 (Robles); Balestra, supra, 76 Cal.App.4th at p. 67 [noting that “a warrantless search condition is intended to ensure that the subject thereof is obeying the fundamental condition of all grants of probation, that is, the usual requirement (as here) that a probationer ‘obey all laws’ ”].) “By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers.” (Robles, at p. 795.) As such, a probation search condition “is necessarily justified by its rehabilitative purpose” and “it is of no moment whether the underlying offense is reasonably related to theft, narcotics, or firearms[.]” (Balestra, at p. 67.)
The fact that the underlying conviction did not involve drugs or defendant’s personal use of a weapon does not make the search condition unreasonable. As part of the probation terms, defendant was ordered, inter alia, to not possess deadly or dangerous weapons, firearms, ammunition, or any indicia of gang membership, as directed by the probation officer. He was told not to obtain any new gang related tattoos and was instructed to avoid contact with the victim, codefendants, and members of the Nortenos. Finally, defendant’s criminal history includes several instances of theft; stolen goods are certainly among those items that may be found in an authorized search of personal property. In these circumstances, a warrantless search of defendant’s person and property is an effective tool of supervision. We conclude the search condition is valid as reasonably related to defendant’s rehabilitation and as a deterrent to future criminality.
C. Appearance at Court Proceedings
Finally, defendant contends that the imposition of a limitation on his appearance at court proceedings was an abuse of discretion. Without objection, the trial court ordered defendant to “not appear in any court proceedings unless you are a party or defendant in a criminal action or subpoenaed as a witness or with the prior permission of the probation officer.” Defendant argues that the condition is overbroad and interferes with his constitutional rights of access to the courts, freedom of association, and travel. The Attorney General contends that the condition is not overbroad and that no modification is needed. Although defendant failed to object below, we retain discretion to review a constitutional challenge to probation conditions. (In re Sheena K. (2007) 40 Cal.4th 875, 887-888 (Sheena).) We agree with defendant that the condition must be modified and the restriction on court appearances limited to those proceedings concerning a known member of a criminal street gang.
A general ban on attendance at court proceedings may impinge upon a number of constitutional rights. Foremost in these circumstances is the public’s right of access to criminal and civil trials. (See Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 603 [acknowledging right of access to criminal trials; “this right of access is embodied in the First Amendment, and applied to the States through the Fourteenth Amendment”]; NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1212 [the constitutional right of access extends to civil trials].) Exercise of the right is essential to freedom of speech and to freedom of the press. (See Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555, 577-580.)
Probation conditions that restrict a probationer’s exercise of constitutional rights are permissible if “ ‘ “necessary to serve the dual purpose of rehabilitation and public safety.” ’ ” (People v. Peck (1996) 52 Cal.App.4th 351, 362; see also 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, at p. 704; see also Sheena, supra,40 Cal.4th at p. 890.)
The record in this case demonstrates that the imposed condition is related to a compelling state interest. The underlying robbery was committed to further the interests of a criminal street gang. Defendant himself admitted to prior affiliation with the Norteños and bears a gang tattoo. Additional evidence in the record, including the observations of the Gilroy Police Department, indicates sustained gang involvement. As another appellate court explained, “[t]he restriction on court attendance is aimed at preventing the gathering of gang members to intimidate witnesses at court proceedings” and is “designed to address the problem of gang affiliation.” (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1502, disapproved on other grounds in In re Sade (1996) 13 Cal.4th 952.) “[T]he state’s ability to afford protection to witnesses whose testimony is crucial to the conduct of criminal proceedings is an absolutely essential element of the criminal justice system.” (Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1149-1150 & fn. 15 [describing serious problem of witness intimidation by gang members].) Thus, a limitation on defendant’s appearance at proceedings that involve a fellow gang member is reasonably related to both rehabilitation (limiting defendant’s gang affiliation) and to an important state interest (prevention of witness intimidation and protection of the integrity of the justice system). We find, however, that the condition imposed here is not sufficiently tailored to serve the relevant state interest.
Indeed, defendant concedes that “[w]here a defendant has admitted being a gang member, it may be that a narrowly-drawn restriction on court attendance in support of another gang member is justifiable.” However, defendant suggests a restriction on attendance only at “preliminary hearings or trials where a fellow gang member is the defendant.”
In People v. Perez (2009) 176 Cal.App.4th 380, an appellate court recently struck a probation condition that provided: “ ‘The defendant shall not attend any Court hearing or be within 500 feet of any Court in which the defendant is neither a defendant nor under subpoena. The defendant shall inform the probation officer prior to any Court appearance.’ ” (Id. at pp. 383, 386.) The court observed that the condition, as written, was neither “limited to protecting specific witnesses or parties” nor “confined to trials involving gang members”; the condition was “so broad” that it prevented activities unrelated to future criminality. (Id. at p. 384.) The same is true in this case.
By the terms of the condition, defendant may attend only those proceedings, civil or criminal, in which he is a party or subpoenaed witness, or for which he has the prior permission of his probation officer. The default thus is a general ban on defendant’s attendance at a number of proceedings in which he may have a legitimate interest, e.g., civil, family and criminal matters in which a friend or family member is a victim, witness or party. The condition also bars defendant’s attendance at any newsworthy trials that may be of interest to a member of the general public. In short, rather than focus on those circumstances in which gang intimidation is most likely to be a concern, the condition provides a broad ban with probation officer permission as the only guarantee of defendant’s right of access. Although the court might expect a probation officer to routinely grant permission for attendance in those situations that have no bearing on gang activities, we cannot entrust defendant’s constitutional rights to such unfettered discretion.
We conclude that the limitation on court appearances must be modified to apply only to those court proceedings concerning a known member of a criminal street gang. The condition is thus modified to read as follows: “You shall not be present at any court proceeding where you know or the probation officer informs you that a member of a criminal street gang is present or that the proceeding concerns a member of a criminal street gang unless you are a party, you are a defendant in a criminal action, you are subpoenaed as a witness, or you have the prior permission of your probation officer.” With this modification of the condition, we find no violation of defendant’s constitutional rights.
Our conclusion is consistent with the recent decision by this court in People v. Leon (Feb. 2, 2010, H034066) ___ Cal.App.4th ___ [2010 Cal.App. Lexis 125].
III. DISPOSITION
Upon remand, the trial court shall amend the order granting probation to reflect the above changes to the probation conditions. The trial court shall strike the chemical testing and alcohol use conditions and shall modify the court proceedings condition to read as follows: “You shall not be present at any court proceeding where you know or the probation officer informs you that a member of a criminal street gang is present or that the proceeding concerns a member of a criminal street gang unless you are a party,
you are a defendant in a criminal action, you are subpoenaed as a witness, or you have the prior permission of your probation officer.”
As so modified, the judgment is affirmed.
WE CONCUR: Mcadams, J., Duffy, J.