Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FSB052421. Arthur A. Harrison, Judge.
Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant Samuel Resendez, Jr., challenges three probation conditions imposed following his guilty plea to one count of resisting an executive officer in violation of Penal Code section 69. He contends there was insufficient evidence for the trial court to impose condition No. 15, a gang registration requirement, as provided in section 186.30. He further contends condition Nos. 27 and 29, which prohibit his participation in gang activity, are unconstitutionally vague and overly broad and must therefore be modified to meet constitutional standards.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
On October 5, 2005, at 1:30 a.m., Colton Police Officers Wilson and Parra noticed two individuals standing in the street and saw a third individual attempting to hide behind a vehicle. The officers suspected some type of criminal activity, such as a vehicle burglary or drug trafficking. Officer Wilson recognized defendant when he got out of the patrol vehicle and turned on his light. Based on prior encounters, Officer Wilson knew defendant was a parolee. Officer Wilson ordered defendant to stop on two occasions but defendant walked away. Officer Wilson noticed defendant’s hands move towards his waistband and feared defendant had a weapon. As a result, he “made contact” with defendant and tried to stop him, but a struggle ensued.
Officer Parra yelled to Officer Wilson that defendant was “trying to get something from his waistband.” Officer Wilson attempted to subdue defendant with a taser to his back, but it had no effect. Defendant grabbed the taser gun, pointed it directly at Officer Parra, and started to pull the trigger. Officer Wilson told defendant to drop the taser gun or he would shoot and defendant complied. Once the officers were able to restrain defendant, they found a knife on the ground in the area where the struggle took place.
Based on his movements while being transported to jail, it appeared to Officer Wilson that defendant was attempting to put or remove something from the area of his buttocks. Another fight broke out when defendant was being strip searched at the jail. A substance inside a plastic baggie that tested positive for heroin was removed from defendant’s buttocks during the strip search. Officers also found a pipe on defendant’s person, which is typically used to ingest narcotics.
As a result of the incident, defendant was charged with resisting an executive officer in violation of section 69 (count 1); battery with injury on emergency personnel in violation of section 243, subdivision (c)(1) (count 2); possession of heroin in violation of Health and Safety Code section 11350, subdivision (a) (count 3); and possession of a smoking device in violation of Health and Safety Code section 11364, subdivision (a) (count 4). Prior conviction allegations included one serious or violent felony in 1990 within the meaning of sections 1170.12, subdivisions (a) through (d), and 667, subdivision (b), as well as two prior prison terms in 1990 and 2004 within the meaning of section 667.5.
Pursuant to a plea agreement, defendant pled guilty to count 1, resisting an executive officer, in exchange for three years’ probation and the dismissal of all of the other charges. As a factual basis for the plea, the court accepted the following statement by defendant: “I . . . physically tried to get away from Officer Wilson by forcibly pulling my arm away from him after he had grabbed my arm and ordered me to stop.” The court approved the plea, referred the case to the probation department for a report, and set a further hearing for pronouncement of judgment and sentencing.
With no explanation, the probation officer’s report concludes “defendant is a documented gang member and is clearly not appropriate for Probation” and “is presumptively ineligible for Probation.” Despite the recommendation against probation, the report includes a list of recommended terms and conditions of probation, some of which are gang related. At the sentencing hearing, defendant objected to the statement in the probation report that he is a documented gang member and to the inclusion of probation conditions related to gang membership and gang activity. The trial court granted defendant three years’ probation. With some modifications that are not relevant here, the court imposed the terms and conditions recommended in the probation officer’s report.
DISCUSSION
I. Gang Registration Condition
Probation condition No. 15 requires defendant to register as a gang member pursuant to section 186.30. Defendant contends the trial court erroneously imposed the gang registration condition without making the required finding pursuant to section 186.30, subdivision (b)(3), that his offense of resisting an officer was “gang related.” He also contends there was no evidence before the court to show the offense was “gang related” as required by section 186.30, subdivision (b)(3). According to defendant, the trial court indicated it was relying on the conclusion in the probation officer’s report that defendant is a documented gang member to impose the registration requirement, but the report is inadmissible hearsay and does not include facts to support the conclusion. He also believes expert testimony given during his preliminary hearing cannot be used to show the offense was “gang related” because (1) it would violate his right to due process and confrontation, (2) it is inadmissible hearsay, and (3) “the preliminary hearing was heard by a different judge, and there is no indication in the record that the sentencing court ever read the preliminary hearing transcript.”
“ ‘When an appellant asserts there is insufficient evidence to support the judgment, our review is circumscribed. [Citation.] We review the whole record most favorably to the judgment to determine whether there is substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof.’ ” (In re Jorge G. (2004) 117 Cal.App.4th 931, 941-942.) Although it is true, as defendant contends, that the trial court did not make a specific factual finding that his current offense was gang related, we will imply the necessary finding as long as it is supported by substantial evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1147.)
Gang registration under section 186.30, is mandatory for “[a]ny crime that the court finds is gang related at the time of sentencing or disposition.” (§ 186.30, subd. (b)(3).) The term “gang related” includes, but is not limited to, “all crimes committed for the benefit of, at the direction of, or in association with a criminal street gang.” (In re Jorge G., supra, 117 Cal.App.4th at p. 941.) The fact that a crime qualifies as “gang related” must be proved by a preponderance of the evidence. (Id. at p. 944.) A defendant’s prior offenses and past gang activities or personal affiliations are relevant to determining whether the current offense is “gang related.” (People v. Martinez (2004) 116 Cal.App.4th 753, 762.) However, the record must also include some evidence that the current offense is “gang related.” (Ibid.)
“A crime is gang related if it is related to a criminal street gang as defined in section 186.22, subdivisions (e) and (f). The elements of this definition require: (1) an ongoing organization or group, (2) of three or more persons, (3) having as one of its primary activities the commission of the crimes enumerated in section 186.22, subdivision (e)(1)-(25), (4) having a common name or symbol, and (5) whose members individually or collectively have engaged in a pattern of criminal gang activity. This pattern of gang activity must consist of: (a) two or more of the offenses enumerated in section 186.22, subdivision (e)(1)-(25), provided that at least one offense occurred after the effective date of the statute; (b) the last offense occurred within three years of the one before it; and (c) the offenses were committed on separate occasions or by two or more persons.” (In re Jorge G., supra, 117 Cal.App.4th at p. 944.)
Here, the record includes evidence sufficient to support the trial court’s decision to impose gang registration as a condition of defendant’s probation. During the preliminary hearing, a qualified gang expert opined that defendant is a member of an active gang consisting of approximately 250 documented members. The expert based his opinion on his contact with defendant during a prior arrest, a conversation with defendant’s parole officer, and records he reviewed indicating defendant was documented as a gang member with connections to the Mexican Mafia in 2003 while he was in prison on a prior conviction. He also noted defendant has gang tattoos on his left hand, abdomen, and chest.
According to the expert, the primary activities of defendant’s gang include narcotics sales, violent crimes, carjackings, robberies, and burglaries. The expert testified he was aware of a pattern of criminal activity by the gang, and specifically described an incident that took place on March 17, 2005, involving two members of defendant’s gang who were convicted of carjacking and assault with a deadly weapon. Both of these offenses are enumerated in section 186.22, subdivision (e)(1) and (e)(21), and thus qualify as offenses which can establish a “ ‘pattern of criminal gang activity.’ ” (§ 186.22, subd. (e).) The sentences imposed as a result of these convictions included gang enhancements pursuant to section 186.22.
The expert stated he listened to the testimony given by Officer Wilson during the preliminary hearing in this case, and, in his opinion, defendant resisted arrest during the incident on October 5, 2005, in order to achieve status in the gang and to benefit the gang’s reputation for violence. He also testified it is common for gang members to conceal a narcotic on their person by swallowing it or placing it inside the rectum and then purposely getting arrested so they can disburse it inside the jail as part of the gang’s narcotic operations.
Probation and sentencing hearings must be fundamentally fair, but due process “ ‘does not require the same procedural safeguards’ ” as would be necessary at a trial on the issue of guilt. (People v. Arbuckle (1978) 22 Cal.3d 749, 754.) “Reliability of the information considered by the court is the key issue in determining fundamental fairness.” (Id. at pp. 754-755.) Probation reports are considered inherently reliable and admissible, because they are prepared by expert, objective government personnel in pursuit of their official duties. (Id. at p. 755.) We therefore reject defendant’s argument that the trial court erroneously considered the conclusion in the probation report that he is a documented gang member.
Although defendant was entitled to challenge facts asserted in the probation report at the time of sentencing, “fundamental fairness does not require that he be allowed to challenge such statements by cross-examining the personnel who prepared the report.” (People v. Arbuckle, supra, 22 Cal.3d at p. 754.) While we acknowledge defendant requested an evidentiary hearing, which the trial court denied without explanation, we cannot conclude the denial resulted in any prejudice to defendant. There is nothing in the record to suggest the probation report inaccurately or unreliably concludes defendant is a gang member. In addition, the report does not stand alone. As outlined above, the conclusion that defendant is a gang member is supported by expert testimony given during the preliminary hearing. During the preliminary hearing, defendant had an opportunity to cross-examine the expert. There is also nothing in the record to contradict the expert’s testimony that defendant’s current offense of resisting an officer was committed to benefit defendant’s gang and/or to further its narcotics operations. Defendant has not stated what evidence, if any, could have been offered at the time of sentencing to discredit the probation officer’s conclusion or the credibility of the expert’s testimony on the issues of gang membership or gang relatedness. We therefore reject defendant’s argument he suffered violations of his right to due process and his right to confrontation when the sentencing court denied his request for an evidentiary hearing and relied on the probation report.
We are also unconvinced by defendant’s argument there is insufficient evidence to justify a gang registration requirement because the preliminary hearing was conducted by a different judge, and there is nothing to indicate the sentencing court ever read the preliminary hearing transcript. As outlined above, our role is to review the whole record in the light most favorable to the judgment and uphold the judgment if there is substantial evidence to support it. We therefore cannot ignore the relevant testimony given during the preliminary hearing. In addition, as respondent points out, we can infer the sentencing court was aware of the substance of the expert’s preliminary hearing testimony because the prosecutor referenced the testimony during the sentencing hearing.
Based on the foregoing, we conclude there was sufficient evidence to establish defendant’s offense of resisting an executive officer was “gang related.” As a result, we also conclude the trial court was justified in requiring defendant to register as a gang member pursuant to section 186.30 as a condition of his probation.
II. Conditions Prohibiting the Display of Gang Signs and Gang Attire
Probation condition No. 27 states that defendant shall “[n]ot display any gang hand signs.” Condition No. 29 states that defendant shall “[n]ot wear, display or have in [his] possession any item associated with gang dress or any items prohibited by the probation officer [i]ncluding but not limited to any insignia, emblem, button, badge, cap, hat, scarf, bandanna, or any article of clothing hand sign or paraphernalia associated with membership or affiliation in any gang.” To support the argument, defendant cites People v. Lopez (1998) 66 Cal.App.4th 615, 628-635, where the appellate court found it necessary to modify similar probation conditions because they did not include a knowledge requirement. Respondent agrees that these conditions should be modified to include a knowledge requirement.
To withstand a constitutional challenge based on vagueness apparent on the face of a probation condition, the condition “ ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated.’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) The minor in Sheena K. was placed on probation, subject to the condition that she not “ ‘associate with anyone disapproved of by probation.’ ” (Id. at p. 880.) Our Supreme Court agreed with the minor that the condition was unconstitutionally vague and overly broad, because it did not include an express knowledge requirement. (Id. at pp. 890-891.) Based on Sheena K. and Lopez, we agree with the parties that condition Nos. 27 and 29 are unconstitutionally vague or overly broad because they do not include a knowledge requirement. We therefore agree that defendant is entitled to a modification of condition Nos. 27 and 29.
DISPOSITION
Condition No. 27 is modified to read as follows: “Defendant shall not knowingly display any gang hand signs.” Condition No. 29 is modified to read as follows: “Defendant shall not knowingly wear, display or have in his possession any item associated with gang dress or any items prohibited by the probation officer, including but not limited to, any insignia, emblem, button, badge, cap, hat, scarf, bandanna, or any article of clothing hand sign or paraphernalia associated with membership or affiliation in any gang.” In all other respects, the judgment is affirmed.
We concur: HOLLENHORST J., MILLER J.