Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS10133.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Pursuant to a written plea agreement, defendant Francisco Javier Ruiz pleaded no contest to a felony charge of driving recklessly in an attempt to elude a pursuing peace officer. (Veh. Code, § 2800.2.) The trial court dismissed remaining misdemeanor charges, suspended imposition of sentence for three years, and placed defendant on formal probation with 24 separate conditions, including some gang conditions.
On appeal, defendant contends that the gang conditions should incorporate the statutory definition of criminal street gangs. He also complains that the words “suspect” and “the color blue” are vague and overbroad and should be stricken from one of the gang conditions. For the reasons stated below, we will direct the trial court to modify the words “gang” and “suspect, ” and will affirm the judgment as so modified.
Proceedings
Defendant, born in November 1984, was declared a ward of the juvenile court in 1999, and gang terms were imposed.
The facts are drawn from the probation report.
On May 14, 2010, while a Salinas police officer was taking a report about a person in a burgundy Yukon brandishing a shotgun, defendant drove by in a blue Honda Civic. The crime victims identified that car as also involved in the incident. As the officer followed the Civic, defendant ran several stop signs and traffic signals and passed vehicles while traveling northbound in a southbound lane, reaching speeds of 50 miles per hour on residential streets. Then defendant stopped and attempted unsuccessfully to flee on foot.
On May 26, 2010, defendant entered a negotiated disposition. At sentencing on June 24, 2010, defendant objected to a number of conditions recommended in the written probation report. The court modified some conditions based on defendant’s objections. The typed probation report included the following conditions, among others:
“16. Not be present in any area you know, suspect, or are told by the Probation Officer to be a gang-gathering area.
“17. Not associate with any individuals you know or suspect to be gang members, drug users, or on any form of probation or parole supervision.
“18. Not remain in any vehicle either as a passenger or driver which you know or suspect to be stolen or to contain any firearms or illegal weapons.”
We omit from all quotations condition 19 pertaining to using and possessing police scanners, as it is not relevant to the issues on appeal.
“20. Not possess, wear, use or display any item you know, suspect, or have been told by the 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, or any article of clothing, hand sign, or paraphernalia, to include the color red/blue.”
Although the word “suspect” appeared in conditions 16, 17 and 20 as well as 18, defendant’s counsel made the following objection: “In regards to item number 18, I would ask the Court to strike the term ‘suspect’ and put that he ‘should know or reasonably should know.’ ” When orally imposing the gang conditions, the court did delete the word “suspect” from condition 17 as well as 18, but did not delete it from conditions 16 and 20, as follows. (In otherwise quoting the court, we interpolate bracketed condition numbers for ease of reference).
“[16] You are not to be present in any area you know, suspect or are told by the probation department to be a gang-gathering area.
“[17] You are not to associate with any individuals you know, or reasonably should know, to be gang members, drug users or who are on any form of probation or parole supervision.
“[18] You are not to remain in any vehicle, either as a passenger or driver, in which you reasonably know, or should know, [sic] to be stolen or to contain any firearms or illegal weapons.”
“[20] You are not to possess, wear, use or display any item you know, suspect or have been told by the 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, bandana or any article of clothing, hand sign or paraphernalia, to include the color blue. [¶] I’m not going to impose number 21.”
Thereafter when a minute order was generated and was initialed and dated by the trial judge on July 12, 2010, it reflected the deletion of the word “suspect” from conditions 17 and 18 but also deleted that word from condition 16. It remained in condition 20, as follows:
“[16] Not be present in any area you know or are told by the Probation Officer to be a gang-gathering area.
“[17] Not associate with any individuals you know or reasonably should know to be gang members, drug users, or on any form of probation or parole supervision.
“[18] Not remain in any vehicle either as a passenger or driver which you know or reasonably should know to be stolen or to contain any firearms or illegal weapons.”
“[20] Not possess, wear, use or display any item you know, suspect, or have been told by the 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, or any article of clothing, hand sign, or paraphernalia, to include the color blue.”
Discussion
I. Scope of Review
An appellate court generally will not find that a trial court has abused its broad discretion to impose probation conditions so long as a challenged condition relates either generally to criminal conduct or future criminality or specifically to the probationer’s crime. (People v. Lent (1975) 15 Cal.3d 481, 486; People v. Olguin (2008) 45 Cal.4th 375, 379-380.) A court of appeal will review the reasonableness of a probation condition only if the probationer has questioned it in the trial court. (People v. Welch (1993) 5 Cal.4th 228, 237; see In re Sheena K. (2007) 40 Cal.4th 875, 882 (Sheena K.).) A court of appeal may also review the constitutionality of a probation condition, even when it has not been challenged in the trial court, if the question can be resolved as a matter of law without reference to the sentencing record. (Sheena K., supra, 40 Cal.4th at pp. 888-889.)
“Inherent in the very nature of probation is that probationers ‘do not enjoy “the absolute liberty to which every citizen is entitled.” ’ [Citations.] Just as other punishments for criminal convictions curtail an offender’s freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.” (U.S. v. Knights (2001) 534 U.S. 112, 119.) Nevertheless, probationers are not divested of all constitutional rights. “A probation 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, ’ if it is to withstand a [constitutional] challenge on the ground of vagueness. [Citation.] A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as constitutionally overbroad.” (Sheena K., supra, 40 Cal.4th at p. 890.)
In this case, we observe some discrepancies when comparing the probation conditions recommended in the written probation report to the court’s oral imposition and finally to the minute order initialed and dated by the trial judge. Most significantly, the word “suspect” appears in the probation report in conditions 16, 17, 18 and 20; in the oral imposition in conditions 16 and 20; and in the minute order in condition 20 only.
Clearly the original probation report is not controlling, as the trial court modified some recommended conditions pursuant to defendant’s objections. As between the court’s oral statement and the minute order, we will rely on the minute order.
The California Supreme Court has stated that the preferred rule, when the clerk’s and reporter’s transcripts cannot be harmonized, is to favor the part of the record that is entitled to greater credence in the circumstances of the case. (People v. Smith (1983) 33 Cal.3d 596, 599; People v. Harrison (2005) 35 Cal.4th 208, 226.) Specifically with respect to probation conditions, we are mindful of the importance of the written order in ensuring defendant’s compliance, and that such “conditions need not be spelled out in great detail in court as long as the defendant knows what they are; to require recital in court is unnecessary in view of the fact the probation conditions are spelled out in detail on the probation order.” (People v. Thrash (1978) 80 Cal.App.3d 898, 901-902.) In this case, the trial court initialed and dated the minute order, which gives rise to an inference that the court intended the order as the most accurate statement of the conditions the court intended to impose.
This fact serves to distinguish as to this issue our decision in People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073 (Gabriel), in which there was no record that the trial court had ever seen the minute order which conflicted with the reporter’s transcript.
The trial court sustained defendant’s specific objection to the word “suspect.” Although defendant objected to the word only in condition 18, the trial court orally modified both 17 and 18 to omit “suspect, ” and these modifications are reflected in the minute order initialed by the judge. For this reason, we believe that the word “suspect” was intentionally deleted in the minute order from condition 16 as well.
To the extent that the trial court misspoke, such that its oral statement did not reflect the court’s true intentions, the trial court was entitled to correct that clerical error by initialing an accurate minute order. (People v. Schultz (1965) 238 Cal.App.2d 804, 808; cf. People v. Menius (1994) 25 Cal.App.4th 1290, 1295.) We note that the court obviously misspoke in orally modifying condition 18 to “You are not to remain in any vehicle, either as a passenger or driver, in which you reasonably know, or should know, to be stolen or to contain any firearms or illegal weapons.” It was appropriate for the court to restate its intent in the minute order as “Not remain in any vehicle either as a passenger or driver which you know or reasonably should know to be stolen or to contain any firearms or illegal weapons.” (Our emphasis.)
Accordingly, we believe the minute order is, in the circumstances of this case, the best reflection of the order intended by the trial judge.
II. “Gang” Should Refer to Criminal Street Gangs.
Defendant contends that “all the gang-related conditions of probation” should incorporate the statutory definition of a criminal street gang. As quoted above, conditions 16, 17, and 20 each include the word “gang.”
People v. Lopez (1998) 66 Cal.App.4th 615 (Lopez) determined that the word “gang” on its face is “uncertain in meaning” (id. at p. 631) and that probation conditions should be modified so as to expressly incorporate Penal Code section 186.22, subdivisions (e) and (f). (Id. at pp. 634, 638.) In People v. Leon (2010) 181 Cal.App.4th 943, this court modified “gang” to “criminal street gang” without an explicit reference to the statute, but it does not appear that the defendant specifically challenged the definition of the word on appeal.
Penal Code section 186.22 states in part: “(f) As used in this chapter, ‘criminal street gang’ means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” Subdivision (e) lists 33 kinds of criminal activities that qualify a group as a criminal street gang.
The Attorney General agrees that these conditions should be modified. We will order these conditions to be modified accordingly.
III. The Word “Suspect” Should Be Clarified.
Having prevailed in the trial court by having the word “suspect” modified in three probation conditions, on appeal defendant asserts that this “court should strike the word ‘suspect’ from condition of probation number 20.” We agree.
In Gabriel, supra, 189 Cal.App.4th 1070, this court considered a constitutional challenge to Monterey County probation conditions (like 16 and 17 in this case) enjoining a probationer to “[n]ot associate with any individuals you know or suspect to be gang members, drugs users, or on any form of probation or parole supervision.” (Id. at p. 1073.) We reasoned as follows. “To ‘suspect’ is ‘to imagine (one) to be guilty or culpable on slight evidence or without proof’ or ‘to imagine to exist or be true, likely, or probable.’ (Merriam–Webster’s Collegiate Dict. (10th ed.1999) p. 1187 (Webster’s).) To ‘imagine’ is “to form a notion of without sufficient basis.’ (Webster’s, at p. 578.) Given this lack of specificity, the word ‘suspect’ fails to provide defendant with adequate notice of what is expected of him when he lacks actual knowledge that a person is a gang member, drug user, or on probation or parole. Moreover, inclusion of this word renders the condition insufficiently precise for a court to determine whether a violation has occurred. Accordingly, this condition must also be modified to delete the word ‘suspect.’ ” (Id. at p. 1073.)
The Attorney General asks this court to reconsider this holding in Gabriel, arguing that its “rationale focuses on one definition of ‘suspect’ to the exclusion of others, and does not consider the possibility... that there might be other definitions appropriate to the context.” “[T]here can be degrees of knowledge, o[n] a continuum between complete ignorance and absolute certainty.” “A probationer who is charged with avoiding the influence of gangs will increase his or her chances of successful rehabilitation if he or she refrains from joining in activities that he judges to be probably related to gangs and those he believes to be related to gangs, even if the belief is based on faulty assumptions.” “[A]s a practical matter, the term is more definite than” Gabriel assumed, as a probation violation could not be demonstrated without evidence that the probationer “had an objective basis to believe that” an object actually is gang-related. The Attorney General asks us to “interpret ‘suspect’ to mean knowledge of a degree that is less than absolute certainty but more than a trivial possibility.” Defendant responds that such an interpretation “creates more vagueness and uncertainty than it purports to resolve.”
This case does not require us to engage in further semantic analysis of “suspect.” It is obvious from our discussion above (in part I) that the trial court intentionally modified the word in every other condition, deleting it from condition 16 and changing it to “reasonably should know” in conditions 17 and 18. We therefore believe that it was an oversight to leave the word unmodified in condition 20. Given our concerns expressed in Gabriel about the constitutionality of this term in this kind of probation condition, we consider it appropriate to direct the trial court to modify this condition to replace it with “reasonably should know.”
Having requested replacement of “suspect” with “reasonably should know, ” defendant has no objection to such a formulation as vague.
IV. Defendant Has Forfeited Objection to “The Color Blue” Condition.
Defendant further asserts that condition 20 “should be modified to strike the prohibition against wearing the color blue, ” as this aspect of the condition infringes on his First Amendment right of free expression. He does not identify what ideas he would be expressing by wearing blue other than allegiance to Sureños.
He asserts, “[w]hile this condition of probation purports to be tailored to the color associated with the Sureño criminal street gang, it is effectively impossible not to wear the color blue.” Thus defendant questions the reasonableness of this condition. As the Attorney General asserts, this objection has been forfeited by defendant’s failure to assert it in the trial court.
Disposition
The trial court shall modify the probation conditions to add a provision stating that “gang” in these probation conditions means “a criminal street gang as defined in Penal Code section 186.22” and to replace “suspect” in condition 20 with “reasonably should know.” As so modified, the judgment is affirmed.
WE CONCUR: BAMATTRE-MANOUKIAN, ACTING P.J., MIHARA, J.
In any event, such a contention is likely to be unavailing. In In re Jorge M. (2000) 23 Cal.4th 866, the California Supreme Court determined that proving a violation of the Assault Weapons Control Act required showing “that a defendant charged with possessing an unregistered assault weapon knew or reasonably should have known the characteristics of the weapon bringing it within the registration requirements of the AWCA.” (Id. at pp. 869-870.)
The court rejected a suggestion that such an interpretation was unconstitutional. “That a criminal statute contains one or more ambiguities requiring interpretation does not make the statute unconstitutionally vague on its face [citation], nor does it imply the statute cannot, in general, be fairly applied without proving knowledge of its terms.” (In re Jorge M., supra, 23 Cal.4th at p. 886.) Such a scienter element “is sufficient to protect against any significant possibility of punishing innocent possession.” (Ibid.)