Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F07972
ROBIE, J.
Defendant Juan Antonio Ramos was charged with being a felon in possession of a firearm, misdemeanor possession of drug paraphernalia, providing false identifying information to a peace officer, and being a felon in possession of ammunition. Defendant pled no contest to being a felon in possession of a firearm in exchange for dismissal of all other counts and a grant of probation with 180 days in county jail.
At the sentencing hearing, the court suspended sentence and placed defendant on formal probation for five years. The probation terms included, inter alia, that defendant not associate with known gang members and not go to places frequented by known gang members.
On appeal, defendant contends that the court’s gang restriction conditions: (1) are not reasonably related to the purposes of his probation, nor are they related to his future criminality; (2) are overly vague; and (3) suffer from a constitutionally fatal overbreadth. We conclude that the terms of the probation are reasonably related to the purposes of defendant’s probation, are not vague, and do not suffer from a constitutionally fatal overbreath. Therefore, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 8, 2006, Sacramento Police Officers stopped defendant for an expired vehicle registration. Defendant did not have identification and falsely identified himself to the officers as Juan Dominguez. Defendant’s passenger was on searchable probation. After determining that defendant had lied about his identity, the officers searched the vehicle. The officers discovered a glass narcotic smoking pipe, a stolen Smith & Wesson .357-caliber revolver, a sock containing several rounds of ammunition, and a plastic bag containing smaller caliber rounds of ammunition.
Defendant denied having any gang affiliation; however, the probation report states that a citizen told police officers that defendant was a member of the Howe Park Sureños, a local street gang. The prosecution later identified the citizen as E. G.
Defendant had two prior narcotic convictions. In January 2006, officers conducted a probation search of a private residence and defendant was found to be in possession of .47 grams of methamphetamine, a digital scale, a balance scale, drug packaging materials, and several types of ammunition. In June 2006, police officers contacted defendant and another subject in an area known for high drug activity. While the officers questioned the other subject, defendant fled the area and discarded a pouch. When officers apprehended him, defendant was carrying a small electronic scale and 14 individually wrapped packages of methamphetamine that totaled 12 grams.
DISCUSSION
I
The Gang Restriction Conditions Of Defendant’s Probation Are Related To The Purposes Of His Probation Because They Are Designed To Prevent Future Criminality
Defendant contends that because “none of the crimes for which [he] was convicted . . . were gang related,” the court’s gang restriction conditions are unreasonable. We disagree. The gang restriction conditions are reasonable because they are designed to help prevent future criminality.
People v. Lent (1975) 15 Cal.3d 481 established a framework to determine the reasonableness of an adult probation condition. Lent held that an adult probation condition is unreasonable only if “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. . . .” (Id. at p. 86.)
Defendant correctly states that there is “no indication that the charged crimes were somehow connected to gang activity.” Defendant is also correct when he states that “association with [criminal] gang members is not a crime.” (See Lanzetta v. New Jersey (1939) 306 U.S. 451, 458 [83 L.Ed. 888, 893].) Therefore, we may uphold the gang restriction conditions only if the conditions are “reasonably related to future criminality.” (People v. Lent, supra, 15 Cal.3d at p. 486.) For the following reasons, we conclude that the gang restriction conditions are, in fact, reasonably related to defendant’s future criminality.
Defendant was identified as a member of the Howe Park Sureños in a statement made by E. G. to the police. Defendant maintains that this “classification” as a gang member is based on unreliable hearsay and that the trial court abused its discretion in choosing to consider E. G.’s statement. In Williams v. New York (1949) 337 U.S. 241 [93 L.Ed. 1337], however, the court found that once guilt has been determined, evidence that would be inadmissible on the issue of guilt may nevertheless be received as bearing on the punishment to be imposed. Furthermore, the court may exercise “wide discretion in the sources and types of evidence used to assist” in sentencing. (Id. at p. 246 [93 L.Ed. at p. 1341], italics added.)
Given the broad scope of discretion given to the trial court in this matter, the trial court reasonably could have determined that E. G.’s statement to police was credible. E. G. was a known citizen who identified defendant as a member of a specific street gang, the Howe Park Sureños. There is nothing in the report to indicate that the statement in this regard was unreliable. The trial court did not abuse its discretion in relying on E. G.’s statement to officers of the Sacramento Police Department.
Because defendant has been identified as a gang member, his disassociation from gang members will help prevent future criminality. In People v. Lopez (1998) 66 Cal.App.4th 615, the court held that gang probation conditions are “proper when imposed on adult offenders.” (Id. at p. 625.) In Lopez the fact that there was “insufficient [evidence] to show that [Lopez’s] crime was in some manner gang related” did not prevent the court from upholding a gang restriction condition. (Id. at p. 626.) In upholding the restriction, the court considered that despite being in his early 20’s, Lopez’s “consistent and increasing pattern of criminal behavior warranted [the] conclusion by the trial court that [his] disassociation from gang-connected activities was an essential element of any probationary effort at rehabilitation.” (Ibid.) We find defendant’s case to be very similar to Lopez. Like Lopez, defendant is young -- 25 years of age at the time of sentencing, has shown an increasing pattern of criminal behavior, and has been shown to have an affiliation with a criminal street gang. Consequently, we conclude that the gang restriction condition is related to defendant’s successful rehabilitation and has a logical nexus to preventing future criminality.
II
The Conditions Of Probation That Prevent Defendant From Associating With Known Gang Members And From Visiting Places Where Gang Members Are Known To Frequent Are Not Vague
Defendant argues that the conditions of his probation are vague for three reasons: (1) the condition that defendant is “not [to] associate with gang members,” as opposed to gang members known to him, is vague and “improperly subject[s] [defendant’s] liberty interests to . . . forfeit[ure] without any culpable mens rea on his part”; (2) the condition that prohibits defendant from “be[ing] in places where gang members are known to frequent” is vague; and (3) the term “gang” is vague because it does not specifically restrict defendant’s association with criminal gangs. For the following reasons, we find defendant’s arguments to be without merit.
Defendant contends that the trial court’s initial order that he “not associate with gang members” violates the ruling in In re Justin S. (2001) 93 Cal.App.4th 811. In In re Justin S. the court held that a condition that prohibited the defendant from “‘associat[ing] with any gang members’” (id. at p. 813) was “‘“a classic case of vagueness”’” (id. at p. 816). While we agree with the reasoning in In re Justin S., we must read the record in its totality to determine the scope of the condition imposed here. Taken as a whole, the trial court’s order clearly prohibits defendant from associating only with persons known to him to be gang members.
After outlining the gang restriction conditions of defendant’s probation, the court immediately clarified the proposed probation terms:
“THE COURT: In the interest of your successful criminal rehabilitation, and the safety and peace of this community, this Court is going to impose the two conditions noted in the probation report: One, that you not associate with gang members.
“Do you understand?
“THE DEFENDANT: Okay.
“THE COURT: And that you not be in places where gang members are known to frequent.
“In other words, you cannot be at the park, in a car, or on the corner in the street, with known gang members.” (Italics added.)
Given the court’s statement along with the fact that the order of probation properly reflects these terms, we hold that this probation term is not impermissibly vague.
The order of probation states that defendant is not to associate with any “known and reputed gang members.” The use of the term “reputed” does not accurately reflect the court’s reading of the gang-related conditions of the probation; however, defendant does not raise this issue on appeal and therefore we will not address it.
Defendant also argues that the condition that prohibits him from “be[ing] in places where gang members are known to frequent” is vague because it does not specifically refer to places known to him to be frequented by gang members. Defendant argues that the same reasoning applied in Lopez is applicable in the present case. We disagree. The use of the term “known” in this case could only be reasonably read to refer to defendant’s own knowledge of these places.
Defendant further argues that the term “gang” is not clear because it does not refer, unequivocally, to “criminal gangs.” We find this argument to be without merit. In Lopez the court rejected this exact line of reasoning. The court considered the context of the case and held that the term “gang” was to be read to refer to “criminal street gangs” as defined by Penal Code section 186.22, subdivision (f). (See People v. Lopez, supra, 66 Cal.App.4th at pp. 631-632.) In light of the fact that defendant has been identified as a member of a criminal street gang, we conclude that the term “gang” clearly refers to “criminal street gangs.”
III
The Gang Restriction Conditions Do Not Violate Defendant’s First Amendment Right To Association And Expression
Defendant argues that the gang restriction conditions are overly broad in such a manner that violates his First Amendment rights to association and expression. Specifically, defendant argues that the gang restriction conditions may well prevent him from “going to a movie theater, shopping mall, public beach or restaurant if it was known [to him] to be ‘frequented’ at some undefined and unrestricted time by [criminal] gang members.” Defendant argues that the gang restrictions set forth by the court have not been tailored carefully and are not so strongly related to his rehabilitation that they should be allowed to restrict his constitutional freedoms. We disagree.
“[C]onditions of probation that impinge on constitutional rights must be tailored carefully and ‘reasonably related to the compelling state interest in reformation and rehabilitation . . . .’” (People v. Delvalle (1994) 26 Cal.App.4th 869, 879; see In re White (1979) 97 Cal.App.3d 141, 146.) However, given defendant’s relatively young age, his identification as a member of a criminal street gang, and his previous convictions, we conclude that the gang restriction conditions are “tailored carefully and ‘reasonably related to the compelling state interest in reformation and rehabilitation’” and will help to prevent recidivism and future criminality on the part of this particular defendant. (Delvalle, at p. 879; see In re White, supra, 97 Cal.App.3d at p. 146.) By limiting his association with gang members as well as his exposure to criminal activity that often occurs in places frequented by gang members, the conditions will further defendant’s successful rehabilitation.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., MORRISON, J.