Opinion
A150951
07-25-2018
THE PEOPLE, Plaintiff and Respondent, v. GABRIELLA DARLENE PINOLA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUKCRCR 16859161)
Gabriella Darlene Pinola appeals from a judgment of conviction and sentence imposed after she entered a plea of nolo contendere. She contends a probation condition that she "not . . . act in association with . . . any gang" is unconstitutionally vague and overbroad. She also contends the abstract of judgment must be modified to include a particular term of her plea agreement. We will modify the probation condition and affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
In September 2016, Pinola was charged by information with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)).
All statutory references are to the Penal Code.
According to testimony at the preliminary hearing, Pinola and her victim, Cassandra Steele, had issues with each other because they had dated the same person. In May 2016, Pinola and three others attacked Steele while she stood near her parked car. Pinola hit Steele several times in the leg and head with a metal baseball bat, and another person punched Steele in the face. Steele suffered pain and redness on the back of her head, an abrasion on her lip, and pain in her leg. Steele's three-year-old son was sitting in the backseat of the car and witnessed his mother's beating.
In February 2017, the information was amended to add a count for assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)). Pursuant to a written plea form, Pinola entered a no contest plea to that count in exchange for an agreement that her sentence would be suspended, she would serve 60 days in jail, and the prosecutor would not oppose reducing the offense to a misdemeanor pursuant to section 17, subdivision (b), if Pinola successfully completed one year of probation. At the prosecutor's request, the court dismissed count one.
The court sentenced Pinola consistent with her plea agreement in March 2017, and imposed formal probation for 36 months on specified terms and conditions. At the sentencing hearing, Pinola objected to conditions recommended by the probation department pertaining to gangs, on the ground that the conditions were not related to her crime and were facially vague and overbroad. Proposed probation condition number 46 (Condition 46) stated: "You shall not be a member of any gang, act in furtherance of, in association with or for the benefit of any gang." Proposed probation condition number 47 (Condition 47) stated: "You shall not associate with any person known as a gang member, and you shall not frequent any area where gang members are known to congregate, or areas known for gang-related activity."
The trial court agreed to strike Condition 47. The court explained, "I'm not going to impose the condition about not associating with a known gang member. That would embrace a substantial portion of her family and her boyfriend of five years. I don't think that would be reasonable under the circumstances." The court also noted that Pinola's family home would constitute an area known for gang-related activity. The court did, however, impose Condition 46.
This appeal followed.
II. DISCUSSION
A. Condition 46
The trial court has broad discretion to impose probation conditions it deems appropriate to rehabilitate and reform the probationer and protect society. (§ 1203.1, subd. (j); People v. Hall (2017) 2 Cal.5th 494, 498 (Hall).) Nonetheless, probation conditions may be challenged as unconstitutionally vague or overbroad. (In re Sheena K. (2007) 40 Cal.4th 875, 890.) Whether a probation condition is unconstitutionally vague or overbroad is reviewed de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
1. Vagueness
"To withstand a constitutional challenge on the ground of vagueness, a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition." (Hall, supra, 2 Cal.5th at p. 500.) A probation condition should not be invalidated as unconstitutionally vague " ' " 'if any reasonable and practical construction can be given to its language.' " ' " (Id. at p. 501.)
Pinola argues that Condition 46 - "You shall not be a member of any gang, act in furtherance of, in association with or for the benefit of any gang" - is vague because it conflicts with the trial court's striking of Condition 47, which would have prohibited her from associating with gang members. She asserts that, despite announcing it was " 'not going to impose the condition about not associating with a known gang member,' " the court did just that in imposing Condition 46. Pinola claims she cannot determine what conduct is prohibited.
We disagree with Pinola's analysis. Condition 47, which the court struck, would have precluded Pinola from merely associating with gang members. Condition 46, on the other hand, precludes gang membership and "act[ing] in furtherance of, in association with or for the benefit of" a gang. (Italics added.) Obviously, Condition 46 pertains to engaging in activity that is gang-related - as respondent puts it, "typically criminal action" - rather than merely associating with someone who is known to be in a gang. (See People v. Gardeley (1996) 14 Cal.4th 605, 622 [" equating for the benefit of, at the direction of, or in association with" any criminal street gang in § 186.22, subd. (b)(1) with "gang related"], disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.) The fact that the sentencing court explicitly said it was not going to impose a condition precluding mere association with gang members creates clarity - not ambiguity - by confirming that Condition 46 is limited to engaging in activity related to gang purposes.
In her reply brief, Pinola rejects the notion that " 'act[ing] in association with any gang' " is limited to " 'participat[ing] in criminal gang activity.' " While she urges that no cited case has held that acting in association with a gang is limited to participating in criminal gang activity, we so hold now, for purposes of this case and in consideration of the appellate record.
In light of Pinola's circumstances, we will modify Condition 46 for clarity, so that it reads as follows: "You shall not be a member of any criminal street gang or commit any unlawful act or acts in furtherance of, in association with, or for the benefit of any criminal street gang."
At oral argument, Pinola agreed to this proposed modification but respondent did not. Respondent argued that the trial court intended to prohibit acts that were committed in furtherance of, association with, or for the benefit of a gang, even if the acts were legal. Respondent's brief, however, defended Condition 46 as targeting activity that was "typically criminal action." (Italics added.) Furthermore, respondent acknowledges that Condition 47, barring association with a gang, was properly stricken by the trial court; respondent has not sufficiently identified where the line would be drawn between legal activity in association with a gang (which respondent proposes to bar) and associating with a gang (which respondent agrees should not be barred).
2. Overbreadth
A probation condition is overbroad "if it prohibits a substantial amount of constitutionally protected conduct." (In re Ramon M. (2009) 178 Cal.App.4th 665, 677.) A probation condition that limits a person's constitutional rights must be closely tailored to the purpose of the condition. (Sheena K., supra, 40 Cal.4th at p. 890.) "The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
Pinola argues that Condition 46 is overbroad because it interferes with her constitutional right to associate with her family and boyfriend, who are gang members. (Citing Roberts v. United States Jaycees (1984) 468 U.S. 609, 617-619; Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594, 624.) Specifically, Pinola advises that her family has a history of being directly associated with and entrenched in Norteno criminal street gang activity, the family residence is a place where known Norteno gang members and associates congregate, and her boyfriend of five years is a known Norteno gang member. She contends the court deprived her of her constitutional right to live with her family and date her boyfriend, and was not narrowly tailored to the state interest in public safety or her rehabilitation.
Pinola's argument is unavailing. Condition 46, particularly as we have modified it, does not prevent Pinola from being in her family home, seeing her boyfriend, or associating with people known to be gang members. It precludes her from engaging in unlawful gang-related activity, which is a reasonable condition in light of her circumstances, is reasonably related to her rehabilitation, and is narrowly tailored to appropriate state interests.
B. Abstract of Judgment
Pinola contends the abstract of judgment must be modified to specifically mention a plea agreement term that her conviction would be reduced from a felony to a misdemeanor if she successfully completes one year of probation. She urges that this term was an important part of the plea agreement, and its omission from the abstract of judgment could only be due to a mistake by the court clerk.
As respondent points out, however, there is no abstract of judgment in the record. Pinola's citation is not to an abstract of judgment, but to the clerk's minutes from the sentencing hearing. Because the abstract of judgment is not in the record, we cannot review or modify it.
Moreover, there is no indication of any conflict in the record for us to resolve. Although the minutes of the sentencing hearing do not explicitly reference the plea term, the term is referenced in the plea agreement, appears in the minutes of the hearing at which the plea was taken, and was confirmed by the trial court both when it accepted Pinola's plea and at her sentencing. Nothing in the clerk's minutes from the sentencing hearing is in actual conflict with a term of her plea bargain or anything stated by the court in imposing sentence.
On the day before oral argument, respondent advised that Pinola's conviction has now been reduced to a misdemeanor pursuant to Penal Code section 17, subdivision (b). --------
III. DISPOSITION
Probation Conditon 46 is modified so it reads: "You shall not be a member of any criminal street gang or commit any unlawful act or acts in furtherance of, in association with, or for the benefit of any criminal street gang." With this modification, the judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.