People v. Gonsalves

Decision Date30 June 2021
Docket NumberA159031
Citation66 Cal.App.5th 1,280 Cal.Rptr.3d 705
CourtCalifornia Court of Appeals Court of Appeals
Parties The PEOPLE, Plaintiff and Respondent, v. Michael Carlos GONSALVES, Defendant and Appellant.

Certified for Partial Publication.*

Spero Law Office and Leah Spero for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Masha A. Dabiza, Deputy Attorney General, Jalem Z. Peguero, Deputy Attorney General for Plaintiff and Respondent.

Fujisaki, Acting P.J.

A jury convicted defendant Michael Carlos Gonsalves of grand theft ( Pen. Code,1 § 484e, subd. (d) ) and fraudulent possession of personal information ( § 530.5, subd. (c)(3) ), and the trial court sentenced him to three years of probation. On appeal, defendant challenges the validity of a probation condition forbidding him from associating with any persons known to him to have a "criminal record."

In the published portion of our opinion, we conclude the challenged condition is constitutionally flawed. The condition's use of the term "criminal record" is impermissibly vague because it has no settled meaning and may include a record of an arrest resulting in no charge or conviction. And by broadly encompassing a prohibition on association with persons having mere arrest histories without charge or conviction, the condition is not carefully tailored to the government's interests in rehabilitating defendant and protecting the public. In the unpublished portion of our opinion, we conclude that defendant's probation term must be reduced in accordance with Assembly Bill No. 1950 (Stats. 2020, ch. 328, § 2 (20192020 Reg. Sess.) (Assembly Bill No. 1950).) Accordingly, we reverse and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Briefly, the testimony at trial established the following. In November 2017, a Fremont Police Officer investigating a report of suspicious circumstances at a grocery store encountered defendant and two individuals in the store parking lot. Defendant was in possession of a knife, credit cards in the names of Anna C. and Tracy J.,2 three cell phones, and a DoubleTree hotel key card. Defendant claimed to have permission to possess Anna C.’s credit cards, and Tracy J. testified her credit cards had been stolen from her car earlier that year. The hotel card contained credit card information for Carl C. who did not know how his information got onto the card. The People's expert on identity theft testified that someone had transferred Carl C.’s information onto the hotel card via the magnetic strip.

The cell phones found in defendant's possession contained personal identifying information for numerous people who did not know defendant or give him permission to use their information. The cell phones had been used to access websites where personal identifying information could be illegally purchased and contained metadata indicating they belonged to defendant.

The jury found defendant guilty of misdemeanor grand theft ( § 484e, subd. (d) ) and felony fraudulent possession of personal information ( § 530.5, subd. (c)(3) ).

At sentencing, the trial court denied defendant's request to reduce the felony conviction to a misdemeanor, noting that his criminal history, although nonviolent, was "quite ... lengthy" and that "he has not performed well in that connection." In sentencing defendant to three years of felony probation, the court considered the facts that defendant was "[a]rmed, sort of" with a knife at the time of his arrest, that his criminal record was "not encouraging," that his prior record reflected "a pattern of regular and increasingly serious conduct," and that his prior performance on probation was "not encouraging" and had been "medium to poor." (See Cal. Rules of Ct., rule 4.414.)

As one of the conditions of probation, the trial court ordered defendant not to "associate with[ ] any person known to [him] to have a criminal record."

Defendant appealed.

DISCUSSION
A. Challenges to the Probation Condition

We observe at the outset that defendant does not challenge the reasonableness of the association condition under the longstanding framework of People v. Lent (1975) 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545 ( Lent ).3 Rather, he primarily argues the association condition is unconstitutionally vague and overbroad. Although defendant did not make this objection in the proceedings below, a constitutional challenge to a probation condition may be raised for the first time on appeal where, as here, it presents pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court. ( In re Sheena K. (2007) 40 Cal.4th 875, 888–889, 55 Cal.Rptr.3d 716, 153 P.3d 282 ( Sheena K. ).)

The right of association is constitutional but " ‘may be restricted if reasonably necessary to accomplish the essential needs of the state and public order.’ [Citations.] Such restrictions are "part of the nature of the criminal process." " ( People v. Lopez (1998) 66 Cal.App.4th 615, 627–628, 78 Cal.Rptr.2d 66 ( Lopez ).) "Trial courts have broad discretion to set conditions of probation in order to ‘foster rehabilitation and to protect public safety pursuant to ... section 1203.1. [Citations.] If it serves these dual purposes, a probation condition may impinge upon a constitutional right otherwise enjoyed by the probationer, who is ‘not entitled to the same degree of constitutional protection as other citizens.’ " ( Lopez , at p. 624, 78 Cal.Rptr.2d 66.)

Constitutional considerations provide "a second level of scrutiny" beyond the Lent framework. ( People v. O'Neil (2008) 165 Cal.App.4th 1351, 1356, 81 Cal.Rptr.3d 878 ( O'Neil ).) Thus, a reviewing court will apply a different standard of review depending on "the condition's effect on a defendant's civil liberties. "[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 unconstitutionally overbroad." [Citation.] All others are reviewed for abuse of discretion[.]" ( Brandão , supra , 210 Cal.App.4th at p. 573, 148 Cal.Rptr.3d 426.)

1. Constitutional Vagueness

" "[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders’ [citation], protections that are ‘embodied in the due process clauses of the federal and California Constitutions.’ " " ( In re D.H . (2016) 4 Cal.App.5th 722, 727, 208 Cal.Rptr.3d 738 ( D.H. ).) To withstand a vagueness challenge, a probation condition must be sufficiently precise for probationers to know what is required of them, and for the court to determine whether the condition has been violated. ( Sheena K. , supra , 40 Cal.4th at p. 890, 55 Cal.Rptr.3d 716, 153 P.3d 282.) In making this determination, courts are not limited to the condition's text and must consider other sources of applicable law, including judicial construction of similar provisions. ( People v. Hall (2017) 2 Cal.5th 494, 499–501, 213 Cal.Rptr.3d 561, 388 P.3d 794 ( Hall ).)

Defendant argues the association condition at issue is unconstitutionally vague because the term "criminal record" has no settled meaning and may include persons who were merely arrested but not charged or convicted of any crime. We agree. As defendant observes, Merriam-Webster Dictionary defines "criminal record" as "a known record of having been arrested in the past for committing a crime." (Merriam-Webster Dict. Online (2021) [as of June 30, 2021].) Statutory law, moreover, requires the Department of Justice to maintain "state summary criminal history information," a term that includes "dates of arrests, arresting agencies and booking numbers." ( § 11105, subd. (a)(1)(A).)4

The People offer no direct rebuttal to these points and do not dispute that a reasonable construction of the term "criminal record" includes arrest information. Instead, the People posit that the challenged condition avoids unconstitutional vagueness because it is premised on the third party's criminal record being "known" to defendant. We disagree, as the knowledge requirement does nothing to clarify the term "criminal record."

D.H. ’s reasoning on this point is instructive. There, the probationer challenged a condition prohibiting him from accessing "pornography." Our colleagues in Division One held that the term "pornography" was unconstitutionally vague, and that adding an explicit knowledge requirement did not address the term's "inherent vagueness." ( D.H. , supra , 4 Cal.App.5th at pp. 728–729, 208 Cal.Rptr.3d 738.) The court distinguished association conditions amenable to modification by an express knowledge requirement (i.e., non-association with "gang members"), because in those instances, "the vagueness arises not because the category itself is unclear, but instead because it is unclear whether particular people, areas, or items fall within the category." ( Id. at p. 729, 208 Cal.Rptr.3d 738.) As in D.H. , there is an inherent vagueness in the term "criminal record" as it relates to arrest information. The ambiguity is not cured by a requirement that defendant know of an associate's "criminal record," as the inherent vagueness of what constitutes a criminal record remains.

The People alternatively contend the condition may be modified so that the probation officer can specify whether "criminal record" includes arrest records. We cannot agree. Although a trial court may delegate to the probation officer those details that are necessary to implement the terms of probation, the People's suggested modification would improperly delegate the determination of the "nature of the prohibition" to the...

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