272 P.3d 382 (Idaho 2012), 35703, State v. Manzanares

Docket Nº:35703.
Citation:272 P.3d 382, 152 Idaho 410
Opinion Judge:BURDICK, Justice.
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Simona Lisa MANZANARES, Defendant-Appellant.
Attorney:Molly Huskey, State Appellate Public Defender, Boise, for appellant. Erik R. Lehtinen, Deputy Appellate Public Defender argued. Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K. Jorgensen, Deputy Attorney General argued.
Judge Panel:Justices EISMANN, J. JONES and W. JONES concur. HORTON, J., specially concurring in part and dissenting in part.
Case Date:January 06, 2012
Court:Supreme Court of Idaho
 
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272 P.3d 382 (Idaho 2012)

152 Idaho 410

STATE of Idaho, Plaintiff-Respondent,

v.

Simona Lisa MANZANARES, Defendant-Appellant.

No. 35703.

Supreme Court of Idaho, Boise

January 6, 2012

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         [152 Idaho 414] Molly Huskey, State Appellate Public Defender, Boise, for appellant.

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[152 Idaho 415] Erik R. Lehtinen, Deputy Appellate Public Defender argued.

          Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K. Jorgensen, Deputy Attorney General argued.

          BURDICK, Justice.

         Simona Manzanares appeals from the judgment entered following her guilty plea under a conditional plea agreement. She pled guilty to recruiting a criminal gang member under I.C. § 18-8504(1)(a) in exchange for the dismissal of a charge for providing a firearm to a criminal gang member under I.C. § 18-8505. On appeal, Manzanares argues that: (1) I.C. § 18-8504(1)(a) (the " Recruiting Provision" ) is unconstitutionally overbroad on its face and as applied for encroaching on the First Amendment right to free association; (2) I.C. § 18-8505 (the " Firearm Provision" ) is unconstitutionally overbroad as applied for punishing her expressive conduct, unconstitutionally vague on its face and as applied for failing to adequately define " gang member," and unconstitutional under the Second Amendment of the United States Constitution and Article I, Section 11 of the Idaho Constitution for prohibiting a class of persons from keeping or bearing arms; (3) her conviction violates the ex post facto clauses of the United States and Idaho constitutions; (4) the district court erred in failing to dismiss the information based on the information's failure to enumerate all elements of the charged offenses; and (5) the district court erred in failing to dismiss the information based on insufficient evidence offered at the preliminary hearing.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The legislature adopted the Idaho Criminal Gang Enforcement Act (" ICGEA" ), I.C. §§ 18-8501 et seq. , effective March 24, 2006. 2006 Idaho Sess. Laws, ch. 184, § 1, pp. 582-85.1 On February 27, 2007, Manzanares was charged with committing two felonies under the ICGEA: (1) recruiting a criminal gang member in violation of I.C. § 18-8504(1)(a); and (2) supplying a firearm to a gang member in violation of I.C. § 18-8505.

         Under the Recruiting Provision, " [a] person commits the offense of recruiting criminal gang members by ... [k]nowingly soliciting, inviting, encouraging or otherwise causing a person to actively participate in a criminal gang." Idaho Code § 18-8504(1)(a).2 Count I of the Information (the " Recruiting Charge" ), alleged that Manzanares, from about September 21, 2006, until about February 2, 2007, " did knowingly solicit, invite, encourage or otherwise cause a person to actively participate in a criminal gang, The East Side Locas" in violation of the Recruiting Provision.

          Under the Firearm Provision, " [a] person commits the offense of supplying firearms to a criminal gang if the person knows an individual is a gang member and supplies, sells or gives possession or control of any firearm to that gang member." Idaho Code § 18-8505(1).3 Count II of the Information (the

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[152 Idaho 416] " Firearm Charge" ), alleged that Manzanares, on or about October 13, 2006, in Canyon County " did knowingly supply, sell, or give possession or control of a firearm to Jackie Trinidad who the defendant knew to be a criminal gang member" in violation of the Firearm Provision.

         Manzanares waived her preliminary hearing, and on March 21, 2007, she was bound over to the district court. The State filed the Information on March 22, 2007. Manzanares moved to dismiss both charges, arguing that the Recruiting Provision violates both the First Amendment of the United States Constitution and Article I, sections 9 and 10 of the Idaho Constitution and is unconstitutionally vague. She also argued that the Firearm Provision violates the Second Amendment of the United States Constitution and Article I, Section 11 of the Idaho Constitution. Finally, she argued that the Recruiting Charge failed to provide adequate notice of the alleged conduct believed to be criminal. Manzanares filed a Supplementary Motion to Dismiss, arguing that the statutory definition of " criminal gang member" in I.C. § 18-8502(2) is unconstitutionally vague to the extent that it applies to the Recruiting Provision and the Firearm Provision, both statutes are unconstitutionally overbroad, both charges fail to provide adequate notice of the alleged conduct believed to be criminal, and the Firearm Provision is unconstitutionally vague.

         On July 27, 2007, the district court held a hearing to consider Manzanares's motion to dismiss. On August 7, 2007, the district court conditionally granted the motion to dismiss the Recruiting Charge due to the vagueness of the charging language and gave the State seven days to amend the Information to include the name of the person Manzanares allegedly recruited. The district court denied Manzanares's motion to dismiss as to all other grounds raised by Manzanares.

         The State submitted the Amended Information on August 7, 2007. The Recruiting Charge was amended to name Jackie Trinidad as the person Manzanares allegedly recruited and to change the date of the alleged recruiting (from April 1, 2006, to February 27, 2007). The Firearm Charge was amended to change the date on which Manzanares allegedly supplied a firearm to Trinidad (from May 1, 2006, to May 15, 2006).

         On August 9, 2007, the parties submitted a Stipulation to Remand Proceeding for Preliminary Hearing, because the Amended Information included information not previously disclosed to the Defendant: that Trinidad was the person allegedly recruited by Manzanares. The district court remanded the case to the magistrate judge for a preliminary hearing, which was held on August 30, 2007.

         At the preliminary hearing, the State called Corporal Joey Hoadley of the Caldwell Police Department to testify. Corporal Hoadley testified that he has had contact with Manzanares on numerous occasions and that she admitted to him that she is a member of the East Side Locos and that she is the leader of the female branch of the East Side Locos, called the East Side Locas. Corporal Hoadley then testified to specific encounters he had with Manzanares, setting forth various facts associating her with the East Side Locos and East Side Locas.

          According to Corporal Hoadley, State's Exhibit 1, which is a photograph obtained from a vehicle in which Manzanares was riding with a gang member who was arrested, depicts Jackie Trinidad at Manzanares's home, wearing gang attire and holding a firearm with Manzanares standing behind her and flashing the common gang sign for the East Side Locos or East Side Locas. Corporal Hoadley also testified as to State's Exhibit 2, which he says is a copy of Manzanares's MySpace webpage and includes pictures of Manzanares, pictures of other members

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[152 Idaho 417] of the East Side Locos and East Side Locas and numerous other gang references.

         Corporal Hoadley testified that on December 5, 2006, Manzanares voluntarily spoke with him at the Caldwell Police Department. She admitted to being the leader of the East Side Locas. She said that membership in the East Side Locas had dwindled from approximately twenty members initially to less than ten members as people moved, got married, became pregnant, and were incarcerated. She explained that to become a member of the gang one must go through an initiation process called the " jump in", which involves being battered by several gang members for a specified amount of time. She said that the gang funds itself by selling illegal narcotics, by " house shopping" (burglarizing a house), and by " car shopping" (burglarizing a car).

         Finally, Corporal Hoadley testified on State's Exhibit 3, which included an audio recording from Manzanares's MySpace webpage, which he identified as the voice of Manzanares. He testified that based on his expertise on gangs, the language from the audio recording (" For all your Surenos out there keep bangin', homies." ) " is encouraging people to continue in gang activity, committing crimes, committing violence."

         The State also called Jackie Trinidad to testify at the preliminary hearing. Trinidad testified that on December 31, 2005, she attended a New Year's Eve party at Manzanares' sister's house. She testified that she and others were drinking alcohol at the party and that one of her friends asked her if she wanted to get jumped in. She testified that Manzanares was at the party and that Manzanares did not say anything about jumping her in but that Manzanares did join others in hitting her as part of the jumping in. When asked what she does as a member of the East Side Locas, Trinidad said: " Not really anything, like we would just hang out, go to [Manzanares's] house, have barbecues."

         Trinidad testified that the reason she attended the 2005-2006 New Year's Eve party (at which she was jumped in to the East Side Locas) was that her friend Maria wanted to go. Trinidad testified that she hardly knew Manzanares prior to that party and had not previously talked to Manzanares about the East Side gangs. She testified that Maria told her at the party that someone, maybe but not specifically Manzanares, did not want people coming over who were not " Eastsiders."

         Trinidad also testified that at a barbecue at Manzanares's house in May 2006, she and Manzanares went to the garage because " that's where all the...

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