People v. Barajas, No. H036383.

• Court: California Court of Appeals
• Writing for the Court: WE CONCUR: RUSHING
• Citation: 11 Cal. Daily Op. Serv. 10869,198 Cal.App.4th 748,131 Cal.Rptr.3d 412,2011 Daily Journal D.A.R. 12825
• Parties: The PEOPLE, Plaintiff and Respondent, v. Esequiel BARAJAS, Defendant and Appellant.
• Decision Date: 23 August 2011
• Docket Number: No. H036383.

198 Cal.App.4th 748
131 Cal.Rptr.3d 412
11 Cal. Daily Op. Serv. 10,869
2011 Daily Journal D.A.R. 12,825

The PEOPLE, Plaintiff and Respondent,
v.
Esequiel BARAJAS, Defendant and Appellant.

No. H036383.

Court of Appeal, Sixth District, California.

Aug. 23, 2011.

[131 Cal.Rptr.3d 414]Ozro William Childs, Santa Rosa, under appointment by the Court of Appeal, for Defendant and Appellant Esequiel Barajas.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General,[131 Cal.Rptr.3d 415]Rene A. Chacon, Supervising Deputy Attorney General, for Plaintiff and Respondent The People.

LUCERO, J.^*

[198 Cal.App.4th 751]

1. Introduction

Defendant Esequiel Barajas was identified as one of two men who attacked and seriously cut a third man with beer bottles on a San Jose street during the evening of March 9, 2010. Pursuant to a plea agreement, on November 9, 2010 defendant pleaded no contest to a charge of assault with a deadly weapon and admitted that he personally used a beer bottle as a dangerous and deadly weapon and he personally inflicted great bodily injury on the victim. (Pen.Code, §§ 245, subd. (a)(1), 667, 1192.7, 12022.7.) He also admitted violating probation in another case.¹ Pursuant to the agreement, he was released from custody on November 9 with credit for time served, and, at sentencing on December 9, 2010, imposition of sentence was suspended and defendant was placed on probation for three years subject to a number of conditions.

On appeal defendant challenges two of those probation conditions as unconstitutionally vague and overbroad, both prohibiting his presence in different areas, one “in any specific location which you know to be or which the probation officer informs you to be an area of criminal street gang-related activity” and the other “adjacent to any school campus.” For the reasons

[198 Cal.App.4th 752]

stated below, we will affirm the judgment after modifying the latter condition as proposed by the Attorney General.

2. The Sentencing Hearing

Defendant waived a referral for a formal probation report. The written probation report recommended imposing five different gang probation conditions, numbered 13 through 17.

At sentencing, after the court imposed the first gang condition,² defense counsel objected to the imposition of any gang conditions as being unrelated to the instant charges. Noting that defendant was with validated gang members when he was arrested and that defendant was subject to gang conditions in his prior case, the court overruled the objection and proceeded to impose the following conditions.³

“[14] You're not to associate with any person you know to be or the probation officer informs you is a member of a criminal street gang.

[131 Cal.Rptr.3d 416]“[15] You're not to visit or remain in any specific location which you know to be or which the probation officer informs you to be an area of criminal street gang-related activity.

“[16] You're not to be adjacent to any school campus during school hours unless you're enrolled in or with prior permission of the school administrator or probation officer.

“[17] You're not to be present at any court proceeding where you know or the probation officer informs you that a member of a criminal street gang is present or that proceedings concern a member of a criminal street gang unless you are a party, you are a defendant in a criminal action, or you are

[198 Cal.App.4th 753]

subpoenaed as a witness, or you have prior permission of the probation officers.”

“All of these orders are directed and supervised by the probation officer.” “Gang” was defined to mean a criminal street gang as described in Penal Code section 186.22.

3. 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, 124 Cal.Rptr. 905, 541 P.2d 545;People v. Olguin (2008) 45 Cal.4th 375, 379–380, 87 Cal.Rptr.3d 199, 198 P.3d 1.) 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, 19 Cal.Rptr.2d 520, 851 P.2d 802; see In re Sheena K. (2007) 40 Cal.4th 875, 882, 55 Cal.Rptr.3d 716, 153 P.3d 282( 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, 55 Cal.Rptr.3d 716, 153 P.3d 282.)

“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, 122 S.Ct. 587, 151 L.Ed.2d 497.) 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, 55 Cal.Rptr.3d 716, 153 P.3d 282.)

[198 Cal.App.4th 754]

4. The Gang Activity Condition

On appeal defendant challenges condition 15—“You're not to visit or remain in any specific location which you know to be or which the probation officer informs you to be an area of criminal street gang-related activity”—as “impermissibly vague and constitutionally overbroad.” He asserts that both challenged conditions infringe on his right to travel.

[131 Cal.Rptr.3d 417]In analyzing challenges to an injunction restricting criminal street gang activity, the California Supreme Court spelled out the differences between these constitutional doctrines in People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 60 Cal.Rptr.2d 277, 929 P.2d 596( Acuna ).

“Although, as we pointed out in Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1109 [40 Cal.Rptr.2d 402, 892 P.2d 1145], ‘[t]he concepts of vagueness and overbreadth are related,’ there are important differences. ‘A clear and precise enactment may nevertheless be “overbroad” if in its reach it prohibits constitutionally protected conduct.’ ( Grayned v. City of Rockford (1972) 408 U.S. 104, 114 [92 S.Ct. 2294, 33 L.Ed.2d 222], fn. omitted.)

“Unlike the doctrine of overbreadth, which focuses on the impact of a statute on the conduct of persons not before the court, the claim that a law is unconstitutionally vague is not dependent on the interests of absent third parties.⁴ Instead, the underlying concern is the core due process requirement of adequate notice. ‘No one may be required at peril of life, liberty or

[198 Cal.App.4th 755]

property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.’ ( Lanzetta v. New Jersey (1939) 306 U.S. 451, 453 [59 S.Ct. 618, 83 L.Ed. 888], fn. omitted;....) The operative corollary is that ‘a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.’ ( Connally v. General Construction Co. (1926) 269 U.S. 385, 391 [46 S.Ct. 126, 70 L.Ed. 322].)

“In its more recent applications of the vagueness doctrine, the high court has also expressed a concern for the potential for arbitrary and discriminatory enforcement inherent in vague statutes. ( [Citation]; Kolender v. Lawson (1983) 461 U.S. 352, 357 [103 S.Ct. 1855, 75 L.Ed.2d 903] [doctrine seeks to avoid ‘arbitrary and discriminatory enforcement.’] ) Thus, a law that is ‘void for vagueness' not only fails to provide adequate notice to those who must observe its strictures, but also ‘impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory[131 Cal.Rptr.3d 418]application.’ ( Grayned v. City of Rockford, supra, 408 U.S at pp. 108–109 [92 S.Ct. 2294], fn. omitted.)” ( Acuna, supra, 14 Cal.4th at pp. 1115–1116, 60 Cal.Rptr.2d 277, 929 P.2d 596.)

Probationers have been recognized as still enjoying a constitutional right to intrastate travel (In re White (1979) 97 Cal.App.3d 141, 148, 158 Cal.Rptr. 562), but courts have allowed some restrictions of that right through gang probation conditions. In re Michael D. (1989) 214 Cal.App.3d 1610, 264 Cal.Rptr. 476 quickly rejected a challenge to the condition “ ‘You are not to be present in any known gang gathering area.’ ” ( Id. at p. 1616, 264 Cal.Rptr. 476.) “Minor contends he lives in the Middleside gang area and a condition he stay out of known gang gathering areas is vague and restricts his constitutional right to travel. But we think the condition is not ‘so sweeping and so punitive that it becomes unrelated to rehabilitation.’ (In re White, supra, 97 Cal.App.3d at p. 148 [158 Cal.Rptr. 562].) Given the facts of this case requiring minor to stay out of known ‘gang gathering areas' is neither unreasonably vague nor unconstitutional.” ( Id. at p. 1617, 264 Cal.Rptr. 476.)

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