Opinion
H031753.
2-25-2009
THE PEOPLE, Plaintiff and Respondent, v. EDUARDO MUNOZ PEREZ, Defendant and Appellant.
Not to be Published in Official Reports
A jury convicted appellant of one count of carrying a loaded firearm and one count of carrying a concealed firearm and also found true various sentence enhancing factors. (Pen. Code, §§ 12031, subds. (a)(1), 2(C) & (F), 12025, subds. (a)(3), (b)(3) & (6), 186.22, subd. (b)(1).) Appellant contends that the evidence was insufficient to support the Penal Code section 186.22, subdivision (b), gang enhancement and that the trial court improperly admitted hearsay evidence as to appellants specific intent. Appellant contends that he could not be convicted of both counts because one is necessarily included in the other. He further contends that certain gang-related probation conditions are unconstitutionally vague and overbroad. With modifications, we affirm.
Background
Late one December night in 2005, Officer Omar Pena of the Salinas Police Department was patrolling on the east side of Salinas "through an area called Acosta Plaza on a street called Acosta Plaza." He saw a car that had no front license plate. Pena initiated a stop, the car pulled over, and Pena asked the driver, Trinidad Leyva, for his drivers license. Leyva told Pena that he had never had a drivers license. When Penas backup arrived, Leyva was arrested and placed in a patrol car.
Appellant was the front seat passenger. Pena opened the car door and asked appellant to step out of the car. Pena found appellant to be cooperative. He pat searched him and asked him to sit on the curb because Pena was going to search the car. Appellant asked if he could sit in the police car because it was cold outside and Pena obliged, placing appellant in the back seat of the backup officers patrol car. Pena searched the car and saw trash on the passengers side floorboard, underneath the passenger seat, and on the drivers side. Under the passengers seat Pena found a gun with the serial number removed and containing eight live rounds.
Leyvas girlfriend testified that she had lent her car to Leyva, who was "supposed to do an oil change." He dropped her off at work at Chuck E. Cheese and "he was supposed to pick me up, but he never made it back." Leyva planned to take the car to a friends mechanic shop and was going to wait there until his girlfriend called to say she could leave work. Leyvas girlfriend testified that when she did call him to say that she could leave work, a police officer answered the phone.
Leyva testified that, after he dropped his girlfriend off, he drove around running errands. He met up with appellant, whom he knew from playing football, at the shop where he went for the oil change. Leyva took his father, who had assisted with the oil change, home. Then he returned to the shop. He and appellant talked for a while and decided to go get something to eat at Chuck E. Cheese. He drove on some streets and wound up driving down a dead end at Acosta Plaza where he made a u-turn. He said that he talked to his girlfriend while he and appellant were driving and before he was stopped by the police. Leyva testified he did not know that there was a gun in the car until he was stopped by the police.
Pena testified that, when asked, appellant told Pena that he and Leyva were coming from a friends house and were going to pick up Leyvas girlfriend. Appellant told Pena first that a friend had taken him to that house, but later said that he had walked there from the Target store near Hardin Ranch Plaza. The locations of the Target store, the friends house, the oil change shop, the Chuck E. Cheese, Acosta Plaza, and the place where Pena stopped the car were all marked on a map that was introduced into evidence.
The police searched appellants residence, taking photographs and seizing evidence, looking for "indicia specific to Norteno gang membership." In appellants bedroom, they found a black watch cap with a red San Francisco 49ers logo, a red bandana, a black t-shirt with the words NOR CAL, a red hat with a white C, and red and black flannel shirt. They found a piece of particle board painted with a huelga bird carved in it with two four-point stars. They found a CD commercially produced by a Norteno "rap artist" named Woody, and two other CDs, one labeled "woodymix" and one labeled "N" and "XIV." They also found photographs of appellant with others and writings and drawings that were "gang related" including a newspaper article about a shooting in which appellant was the victim and the shooter had yelled a Sureno slogan. The police found ammunition, including a bag in the bathroom containing bullets matching those from the gun found in the car. Appellant had three tattoos. "Salinas" was tattooed on his back, four dots were on one elbow, and one on the other. When admitted to the jail, appellant told a classification officer that he was associated with the Norteno gang.
Salinas Police Officer Bryan McKinley testified that the Norteno gang was a criminal street gang and that, in his opinion, after reviewing the evidence seized and other information about appellant, appellant was a member of the Norteno gang. The Surenos are the rival gang of the Nortenos. McKinley testified that no one had been arrested for the shooting of appellant described in the newspaper article seized, and that appellant had no gang-related convictions, or any criminal convictions at all. McKinley testified that Acosta Plaza, the area where appellant was arrested, was a "high gang, high crime area." McKinley opined that Leyva was, by the time of trial, an active participant in the Norteno gang, although McKinley may not have been able to form that opinion as of the date of the offense.
McKinley was of the opinion, when given a hypothetical question mirroring information from this case, that the gun possession would have been committed for the benefit of the Norteno gang. He did not consider any possession of a firearm by a gang member to be necessarily for the benefit of a gang. He said possession related to domestic violence or hunting would not be, or the lawful possession of a registered firearm. McKinley based his opinion that this offense was for the benefit of the gang on a number of factors, including, "If they have [the gun] with them, it is more convenient obviously for them to be able to use it in protection, or in assaulting someone."
In closing argument, the prosecutor argued that the fact that appellant was charging his cell phone in the car, and had ammunition in his home that matched that in the gun established that appellant possessed the gun. He also argued that the gang evidence, with the conflicting accounts from appellant and Leyva about the route they were travelling, showed that Leyva was "schooling up" for gang membership by spending this time with appellant. Defense counsel argued, "Whose gun is it? Thats the question that really counts here, and thats really the only question that really counts here. The gang evidence is all a distraction."
After six days of trial, the jury retired to deliberate at 3:15p.m. on March 26, 2007. At 4:45 p.m., the jury returned with the verdict convicting appellant of both charged counts and finding the gang enhancement true.
The trial court placed appellant on four years of formal probation, ordered him to serve 240 days in jail, and imposed various fines, fees, and probation conditions.
Discussion
The Gang Enhancement
Appellant contends, "The evidence was insufficient as a matter of law to sustain the jury finding that appellant committed the crimes charged for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, as required under Penal Code section 186.22 (b)(1)." Appellant contends, "The trial court improperly admitted hearsay evidence as substantive evidence going to appellants specific intent." Given the interrelated nature of appellants substantial evidence argument with his challenges to the admissibility of hearsay evidence about which the expert testified, we will first address the admissibility of hearsay evidence for an expert opinion in a case involving the criminal street gang enhancement.
Hearsay
Appellant argues, "The trial court erred in admitting the hearsay evidence as substantive evidence tending to prove appellants guilt of the [Penal Code section] 186.22, [subdivision] (b) enhancement. The trial court properly gave a limiting instruction during McKinleys testimony which informed the jury that it could not consider the hearsay upon which McKinley relied as independent proof of the matters asserted therein, but then eviscerated that limitation by giving the jury a concluding instruction which allowed it to consider the evidence for precisely that purpose."
The defense made an in limine motion to prevent the gang expert from relying on hearsay. The trial court denied the motion and said that the court had a special limiting instruction that it would give the jury. Before McKinley testified, the court told the jury, "You may consider evidence of gang activity only for the limited purpose of deciding whether the defendant acted with intent, purpose, and knowledge that is required to prove the gang-related enhancements. Or that the defendant had motive to prove the crime, or — and you may consider this, also, when youre evaluat[ing] the credibility or believability of any witness, and when you consider the facts and information relied upon by an expert in reaching their opinion. You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character, or that he has a disposition to commit the crimes that are alleged."
During trial the court said, "If I could just interject one other thing for the jurys benefit: ladies and gentlemen, clearly at this point, Detective McKinley has talked — or testified about a lot of things that we call hearsay, which is just — its a statement made outside of court, that may be offered for the truth. Well, in this particular case, hes referred to reading police reports, talking to other police officers, talking to people. Hes entitled to do that as an expert in this particular area. But youre not to assume that any of that information hes used to form his opinion, what his opinions are going to be in this case, is to be true, its for — its only for him to form that opinion, and you should consider it only in that light."
On the second day of McKinleys testimony, defense counsel made a hearsay objection and the court said, "The jury remembers the instruction I gave yesterday, ladies and gentlemen. As an expert in this field, certain hearsay, things that are said outside court not necessarily received for the truth of the matter, can be used by any expert to form the basis of their opinion. Those things that are considered that are received into evidence, you arent to consider those to be true or having been proved, but you can consider those in evaluating Detective McKinleys opinion and the reason for that, if you will."
At the end of the trial, the court instructed the jury, "Officer McKinley testified that in reaching his conclusions as an expert witness, he considered statements made by Mr. Eduardo Perez. You have [sic] may consider these statements only to evaluate the experts opinion. Do not consider those statements as proof that the information contained in the statements is true." Appellant argues, "By this closing instruction, the trial court instructed the jury that only the statements made by appellant, and testified to by Detective McKinley, should not be considered for the truth of the matter. By doing so, the trial court allowed a plethora of hearsay and double hearsay statements from Detective McKinley to come in as substantive evidence."
We disagree with appellant that the trial court "eviscerated" the limitations on hearsay evidence by giving the jury this concluding instruction. The trial courts instruction concerning the use of appellants statements did not tell the jury to ignore the previous limitations placed on experts testimony concerning other hearsay statements. We see no reasonable probability or possibility that the jury would understand this instruction as overriding the courts earlier admonitions regarding the limited use of the hearsay evidence. Although those instructions could have been repeated, it was wise of the trial court to give those instructions contemporaneously with McKinleys testimony to insure that the jury understood those limitations while it listened to the testimony.
Citing Crawford v. Washington (2004) 541 U.S. 36 (124 S.Ct. 1354), appellant argues that his right to confrontation was violated in that "the hearsay evidence testified to by McKinley was testimonial insofar as it related hearsay that was collected by police in furtherance of criminal investigations." In Crawford, the Supreme Court concluded that out-of-court statements made by witnesses are subject to the confrontation clause. (Id. at pp. 50-52.) The court explained that the confrontation clause bars use of the testimonial statement of an unavailable witness where there has been no prior opportunity to cross-examine the witness. (Id. at p. 68.) Thus, under Crawford, testimonial statements may not be admitted unless the defendant had an opportunity to cross-examine the person whose hearsay testimony is sought to be introduced. The test for determining whether a statement is testimonial is not whether its use in a potential trial is foreseeable. Rather, the test is whether the statement was obtained for the purpose of potentially using it in a criminal trial or determining if a criminal charge should issue. (Id. at pp. 68-69.) However, "[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers design to afford the States flexibility in their development of hearsay law . . . ." (Id. at p. 68.)
In People v. Thomas (2005) 130 Cal.App.4th 1202, the court rejected a similar claim that the gang experts reliance on out-of-court statements in concluding that other crimes were committed by gang members violated his right to confrontation under Crawford. (Id. at p. 1210.) The court noted that as a general rule, experts are permitted to identify and explain the information and sources on which they base their opinions, and that such sources may include hearsay. The court further noted that expert opinion may be founded on various matters, irrespective of whether they are themselves admissible. The court then reasoned that "Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the experts opinion." (Ibid.)
We agree with the Thomas courts analysis and conclusion. As we explained in People v. Vy (2004) 122 Cal.App.4th 1209, 1223, footnote 9, "[O]pinion testimony from a gang expert, subject to the limitations applicable to expert testimony generally, is proper. [Citation.] Such an expert—like other experts—may give opinion testimony that is based upon hearsay, including conversations with gang members as well as with the defendant. [Citations.] Such opinions may also be based upon the experts personal investigation of past crimes by gang members and information about gangs learned from the experts colleagues or from other law enforcement agencies. [Citations.]" Here, the information upon which McKinley based his opinion was not admitted for the truth of the matter asserted, but to reveal the basis for his opinions.
Appellant argues, "In this case, the trial court admitted McKinleys hearsay testimony as to what others had told him regarding the area of the vehicle stop being a locus of gang activity; the reasons why gang members carry weapons; the meaning of a `Salinas tattoo; and various incidents tying appellant to gang members and gang activity, as going to the substantive issue of whether appellant possessed the gun at issue with the intent to promote or further gang activity. Because those hearsay statements were not limited as going to McKinleys opinion, but rather were admitted as substantive evidence, the trial court abused its discretion."
Appellant recognizes that hearsay that is ordinarily inadmissible can form the proper basis for an experts testimony. (In re Fields (1990) 51 Cal.3d 1063, 1070.) An expert may not testify to incompetent hearsay under the guise of stating reasons for an opinion. (People v. Killebrew (2002) 103 Cal.App.4th 644, 659.) An experts need to consider extrajudicial matters and a jurys need for information sufficient to evaluate an expert opinion may conflict with an accuseds interest in avoiding substantive use of unreliable hearsay. Disputes in this area must generally be left to the trial courts sound judgment. Most often, hearsay problems will be cured by instructions, like those given here, that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth. (People v. Montiel (1993) 5 Cal.4th 877, 919.) Where hearsay evidence is recited in detail, a limiting instruction may not remedy the problem. (People v. Coleman (1985) 38 Cal.3d 69, 92.) A trial courts admission of evidence, including gang testimony, is reviewed for abuse of discretion. The trial courts ruling will not be disturbed absent a showing it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (People v. Avitia (2005) 127 Cal.App.4th 185, 193.) Here, the gang evidence was no more extensive than is typical in a trial in which the charges are enhanced with gang allegations, and the trial courts instructions, given before and during McKinleys testimony, limited the jurys use of this evidence as going to McKinleys opinion, rather than as substantive evidence. Accordingly, the trial court did not abuse its discretion.
Substantial Evidence
Appellant argues that "under the statutes and case law, the prosecution must show more than that a gang member committed a crime. It must also prove that the crime was for the benefit of a criminal street gang. . . . Although there was evidence that appellant was a member of a Norteno gang, there was insufficient evidence he possessed the gun for the benefit of a gang."
As with substantive offenses, the same substantial evidence standard applies when determining whether the evidence is sufficient to sustain a jurys finding on a gang enhancement. (People v. Duran (2002) 97 Cal.App.4th 1448, 1456-1457; People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.) The trier of fact may rely upon expert testimony about gang culture and habits to reach a finding on the gang allegation. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196.) "A gang enhancement does not apply unless the crime was `committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . . (§ 186.22, subd. (b)(1).)" (Villalobos, supra, 145 Cal.App.4th at p. 322; People v. Morales (2003) 112 Cal.App.4th 1176, 1197.) Gang membership alone cannot prove the requisite specific intent. (People v. Gardeley (1996) 14 Cal.4th 605, 623-624.) "As to the second prong of the enhancement, all that is required is a specific intent `to promote, further, or assist in any criminal conduct by gang members. (§ 186.22, subd. (b)(1).)" (Villalobos, supra, 145 Cal.App.4th at p. 322.)
Appellant relies in part on In re Frank S., supra, 141 Cal.App.4th 1192 and People v. Martinez (2004) 116 Cal.App.4th 753. In Frank S., a juvenile bicyclist was stopped for a traffic violation and found in possession of a knife. A gang expert testified that she believed, from the juveniles statements, that he was a gang member or supporter. She further opined that he possessed the knife for protection in case he encountered rival gang members. This was pure speculation, not tied to any gang purpose. Significantly, "the prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense." (Frank S., supra, 141 Cal.App.4th at p. 1199.)
In Martinez, the defendant had committed some auto burglaries with a companion but it was not shown that the companion was a gang member. The issue was whether the evidence was sufficient to support a gang registration requirement, based on the trial courts finding that the crime committed was "gang related." (Martinez, supra, 116 Cal.App.4th at p. 762.) The Martinez court found that the evidence did not support the finding that the crime was gang related. The court emphasized, "We do not conclude that a defendants personal affiliations and criminal record are without consequence in finding a `gang related crime within the meaning of section 186.30. To the contrary, a defendants history of participation in gang activities or criminal offenses may prove that a crime not otherwise or intrinsically gang related nevertheless falls within the meaning of section 186.30. Thus, a crime committed by a defendant in association with other gang members or demonstrated to promote gang objectives may be gang related. However, the record must provide some evidentiary support, other than merely the defendants record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang." (Ibid., first italics added.)
Appellant argues that "there is no evidence in the present case, apart from the testimony of the gang expert on the ultimate issue, showing that the offenses were committed for a gang purpose, rather than a personal one." Appellant argues that "there was no actual evidence, beyond McKinleys naked opinion in response to a hypothetical question, that the offenses had been committed for any purpose beyond Appellants simple carrying of the gun for defensive purposes."
McKinley testified that one aspect of gang culture involved recruitment, that is, "just other gang members trying to get other individuals to join the street gang." This may involve an "older gang member trying to take a younger person kind of under their wing." McKinley also testified that "weapons are tools, basically for gang members. Just like a carpenter has a hammer, gang members use weapons to commit illegal acts, whether its for protection from rival gang members, whether its to assault a rival gang member, if the opportunity happens to present itself, whether its used to — in the commission of a crime, such as a robbery, kidnapping, you know, a carjacking, any other types of stuff like that, they use those weapons in order to commit those types of offenses."
Here, appellant, a Norteno gang member, was in the company of Leyva, who was, at the very least, progressing on the continuum from gang associate to gang member. Appellant had the concealed and loaded gun in gang territory and appellant and Leyva gave inconsistent and contradictory versions of how they happened to be travelling in that area. Although Leyva said that his girlfriend had called to be picked up, the girlfriend testified that by the time she called for her ride the police answered the phone. A review of the map introduced into evidence showing the locations where each had said that they had met up with the other, and their proposed destination, makes their explanations of why they were on the route through gang territory unbelievable and suspicious. While not overwhelming as to appellants purpose, given the deferential standard of review, the record contains sufficient evidence to support the jurys conclusion that appellant possessed the gun for the benefit of the gang.
Dual Convictions
Appellant contends, "The trial court erred in permitting appellants convictions for violating both Penal Code section 12031 (a)(1) and Penal Code section 12025(a)(3)." Appellant argues that he "was convicted on the one hand of carrying a loaded firearm in a vehicle with the penalty provision that the firearm was concealable and not registered to him (§ 12031, subds. (a)(1) and (a)(2)(F)), and on the other hand with carrying a concealed firearm with the penalty provision that the gun was loaded and not registered to him. (§ 12025, subds. (a)(3) and (b)(6).)"
"In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct." (People v. Reed (2006) 38 Cal.4th 1224, 1226; see also Pen. Code, § 954.) However, "[a] judicially created exception to the general rule permitting multiple conviction `prohibits multiple convictions based on necessarily included offenses. [Citation.]" (Reed, supra, at p. 1227; see also People v. Pearson (1986) 42 Cal.3d 351, 355.)
Ordinarily, one offense may be necessarily included in another under either of two tests. "Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. [Citation.]" (Reed, supra, 38 Cal.4th at pp. 1227-1228.) In Reed, however, the Supreme Court held that where the validity of multiple convictions is in issue, only the statutory elements test is to be used in determining whether an offense is necessarily included in another. The court explained: "The accusatory pleading test arose to ensure that defendants receive notice before they can be convicted of an uncharged crime. . . . But this purpose has no relevance to deciding whether a defendant may be convicted of multiple charged offenses." (Id. at p. 1229.) Accordingly, the Reed court concluded: "Courts should consider the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes." (Id. at p. 1231.)
In People v. Sloan (2007) 42 Cal.4th 110, the issue was whether "enhancement allegations [may] be considered for purposes of the rule prohibiting multiple convictions based on necessarily included offenses[.]" (Id. at p. 113.) The Supreme Court held that, because the statutory or legal element test applies, "enhancements are neither recognized nor considered in determining whether the defendant can be convicted of multiple charged crimes based on necessarily included offenses." (Id. at p. 114.) Here, appellants argument depends on consideration of the elements of the charged offenses with the subdivision penalty provisions that increase the punishment for a violation to conclude that he has been subject to improper multiple convictions. However, to be convicted of a violation of section 12031, subdivision (a)(1), appellant must have carried a loaded firearm, but he need not have concealed the firearm. To be convicted of violating section 12025, subdivision (a)(3), appellant must have concealed the firearm, but that firearm need not have been loaded. Thus, neither offense is necessarily included in the other and multiple convictions are allowable.
Probation Conditions
Appellant contends, "Appellants gang-related conditions of probation were unconstitutionally imposed."
The trial court suspended imposition of sentence and placed appellant on probation for four years with various terms and conditions. The court told appellant to report to the probation department "no later than noon tomorrow . . . and they will go through your probation conditions with you." Describing the conditions of probation, the court said, "You are not to be present in any known gang gathering area. These next three conditions — or conditions involving gang involvement, some of those, youll have to go through and your probation officer will be more specific, like what a gang gathering here is, things like that — not associate with people known by you to be either gang members or associates, or on probation or parole; not [to] remain in any vehicle, either as a passenger or driver which is known or suspected to be stolen or containing any firearm, ammunition, or illegal weapon." The court also ordered appellant, "not [to] wear, display or possess any items prohibited by your probation officer as being associated with gang affiliation, includes the insignia, emblems, buttons, badges, red 49er caps, anything containing the color red, [or the] numbers four or 14." The clerks minute order recorded the challenged conditions as that appellant "Not be present in any known or suspected gang gathering area, as directed by the Probation Officer" and "Not [to] possess, wear, use or display any item you know or suspect to be associated with membership or affiliation in a gang, including, but not limited to, any insignia, emblem, button, badge, cap, hat, scarf, bandanna, or any article of clothing, hand sign, or paraphernalia to include the color red, the numbers 4 or 14 as well as any such item prohibited by the Probation Officer."
Appellant argues, "The condition that appellant not be present in any `known gang gathering area is unconstitutionally vague and overbroad." Appellant argues that "the condition that appellant `not be present in any known gang gathering area coupled with the fact that all other conditions were to be specified by the probation officer, remains unconstitutionally vague and overbroad by vesting unfettered discretion in the probation officer, and leaves appellant with no real direction as to how he can abide by the order, at the risk of his liberty."
Appellant argues, "The condition that appellant not `wear, display, or possess various items is unconstitutionally vague and overbroad." He argues that it is vague in that it vests the probation officer with "virtually unlimited discretion" and that appellant should not "be required at his peril to guess as to which of many purported gang-related items his probation officer might object." He argues that it is overbroad in that the condition "would prohibit appellant from owning such disparate and innocuous items as a red pen or stapler; a required school textbook with a red cover or red illustrations, a telephone, watch, or clock (which, of course, are useless without a number `4, not to mention difficult to locate); a drivers license; an American flag; or any one of a panoply of items that are non-criminal and upon which any citizen must rely in order to make his way in society at large."
"[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 (1975) 15 Cal.3d 481, 486; abrogated by Proposition 8 on another ground as recognized in People v. Wheeler (1992) 4 Cal.4th 284, 290-291 .) Terms and conditions of probation are reviewed under the highly deferential abuse of discretion standard. ( People v. Balestra (1999) 76 Cal.App.4th 57, 63.) A sentencing court violates this standard only when its probation condition determinations are arbitrary, capricious, or exceed "the bounds of reason, all of the circumstances being considered." (People v. Welch (1993) 5 Cal.4th 228, 234.)
A probation condition is subject to the "`void for vagueness" doctrine. (People v. Lopez (1998) 66 Cal.App.4th 615, 630.) The "underlying concern" of the void for 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. [Citations.]" (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115.) The question here is whether the void for vagueness doctrine demands an explicit knowledge requirement in the challenged probation conditions. We conclude that it does. Given "the rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights," the knowledge requirement in probation conditions "should not be left to implication." (People v. Garcia (1993) 19 Cal.App.4th 97, 102.)
In People v. Garcia, supra, 19 Cal.App.4th 97, the Court of Appeal limited a probation condition that prohibited the defendant from associating with certain groups of persons (drug users and sellers and felons) because the condition did not require that the defendant have knowledge of the status of these persons. The court modified the condition to prohibit knowing association with those persons. (Id. at pp. 102-103.) This modification was made because the condition was not "sufficiently narrowly drawn." (Id. at p. 102.) Similarly, in People v. Lopez, supra, 66 Cal.App.4th 615, the Court of Appeal, relying on Garcia, concluded that a condition which prohibited the defendant from "associating with persons not known to him to be gang members" was overbroad and modified the condition to prohibit association with known gang members. (Id. at pp. 628-629.) For the same reason, the court modified a condition which would have prohibited the defendant from "displaying indicia not known to him to be gang related," so that it applied only to those indicia that the defendant knew to be gang related. (Id. at p. 629.)
One problem here is that the courts oral pronouncement differs from the clerks minute order, which was clearer in terms of the probation officers involvement in the specificity of the conditions. However, it is the oral pronouncement that controls. (See People v. Mesa (1975) 14 Cal.3d 466, 471.) Appellant is concerned about "unfettered discretion" being vested in the probation officer and that "appellant has no way of knowing beforehand what the probation officer will decide." We observe that the trial court "does not have the power to impose unreasonable probation conditions [and] it [cannot] give that authority to the probation officer." (People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240.) The probation conditions do not authorize irrational directives by the probation officer. Accordingly, appellant would not know or be told by his probation officer that a wrist watch would be associated with membership or affiliation in a gang. Appellant may consult with his probation officer concerning the conditions to obtain knowledge beforehand of what is expected of him. We modify the conditions at issue to expressly require such knowledge.
Disposition
The trial court is ordered to modify the probation conditions in the judgment. The trial court is directed to replace the condition regarding gang gathering areas with "not be present in any area that defendant knows to be or is told by his probation officer is a gang-gathering area." The trial court is directed to replace the condition regarding gang paraphernalia with "not to possess, wear, use or display any item you know or have been told by your probation officer, to be associated with membership or affiliation in a gang, including, but not limited to, any insignia, emblem, button, badge, cap, hat, scarf, bandanna, any article of clothing, hand sign, or paraphernalia to include the color red, the number 4 or 14." With these modifications, the judgment is affirmed.
WE CONCUR:
RUSHING, P. J.
PREMO, J.