People v. Lopez

• Citation: 78 Cal.Rptr.2d 66,66 Cal.App.4th 615
• Decision Date: 26 August 1998
• Docket Number: No. F028223,F028223
• Court: California Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 6970, 98 Daily Journal D.A.R. 9572 The PEOPLE, Plaintiff and Respondent, v. Peter LOPEZ, Defendant and Appellant.

Page 66

78 Cal.Rptr.2d 66

66 Cal.App.4th 615, 98 Cal. Daily Op. Serv. 6970,

98 Daily Journal D.A.R. 9572

The PEOPLE, Plaintiff and Respondent, v. Peter LOPEZ, Defendant and Appellant.

No. F028223.

Court of Appeal, Fifth District, California.

Aug. 26, 1998.

[66 Cal.App.4th 620] Ann Hopkins, under appointment by the Court of Appeal, Oakland, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Robert P. Whitlock and Leah Ann Alcazar, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DIBIASO, Acting Presiding Justice.

STATEMENT OF THE CASE

On February 4, 1997, a complaint charging three felony counts against appellant Peter Lopez (hereafter "Lopez") was filed in Tulare County Superior Court. In count 1, Lopez was charged with grand theft of a vehicle, a violation of PENAL CODE SECTION 487¹, subdivision (d); in count 2, he was charged with unlawful driving or taking a vehicle, a violation of Vehicle Code section 10851; and, in count 3, he was charged with receipt of stolen property, a violation of section 496.

On February 19, 1997, pursuant to a negotiated disposition, Lopez pled guilty to count 2. Under the terms of the plea agreement, Lopez would receive an indicated sentence of not more than 270 days in custody, a restitution fine, and felony probation, and the other two charges would be dismissed.

On March 18, 1997, Lopez was sentenced to three years felony probation, with a term of 270 days to be served in the Tulare County jail, a $200 restitution fine, and a penalty assessment of $340. Various conditions of probation were imposed.

STATEMENT OF FACTS

At approximately 2 a.m. on February 1, 1997, an officer with the Lindsey Police Department saw a vehicle stopped in the middle of the roadway, with its driver's side door open and its brake lights illuminated. A codefendant, Miguel Perez, was standing at the rear of the vehicle; Lopez was sitting in the driver's seat. As the officer approached, Lopez and Perez began running away. The officer gave chase on foot, identified himself, and ordered Lopez and Perez to stop. They ignored the command and continued to flee. The two were eventually apprehended and taken into custody.

DISCUSSION

Introduction

During the change of plea hearing on February 19, 1997, in addition to other advisements, the court told Lopez that if he pled guilty to the count 2 offense:

"Then you will be placed on felony probation and receive not more than 270 days in custody initially. You will be required to pay any actual restitution owing to the victim.

"You are subject to a fine of up to $10,000 plus penalty assessments. A restitution fine of up to $10,000. Other standard terms of probation will be imposed." (emphasis added.)

The court did not advise Lopez of his rights under section 1192.5 at any time before he entered his plea. ²

The probation report, prepared and filed on March 14, 1997, noted that:

"A review of the Tulare County Sheriff's Department classification record, reveals that the defendant is a self admitted gang member and claims 'Norteno'. He has a tattoo of 'XIV' on his left thumb and 'XIV' on his stomach. He has a drug abuse history of using methamphetamine, cocaine, and PCP."

The probation report then recommended the imposition of 17 separate conditions of probation, including the following, which was No. 15:

"The defendant is not to be involved in any gang activities or associate with any gang members, nor wear or possess, any item of identified gang clothing, including: any item of clothing with gang insignia, moniker, color pattern, bandanas, jewelry with any gang significance, nor shall the defendant display any gang insignia, moniker, or other markings of gang significance on his/her person or property as may be identified by Law Enforcement or the Probation Officer."

At the sentencing hearing on March 18, 1997, the court announced its tentative decision to follow the recommendations of the probation department, except that Lopez's in custody time would be reduced from the recommended 370 days to the indicated 270 days. ³ When the court asked for comments from counsel, Lopez's attorney asked the court to strike the "collateral information" about Lopez's gang membership. Counsel asserted there was no evidence the present charges were gang related, the police report did not say Lopez was wearing gang clothing when apprehended, the information was irrelevant, and the classification records could be erroneous. The court denied Lopez's request.

After the court read condition number 15, Lopez's counsel inquired about why this term of probation was being imposed. The trial court responded that Lopez was an admitted gang member and had engaged in criminal activities during the early morning hours with a codefendant, and these facts generated a rational inference that the current crime could have been related to gang activity.

Defense counsel responded that condition 15 infringed on Lopez's constitutional rights to freedom of association and freedom of speech and thus could not be lawfully imposed because there was no evidence the current crime was gang related. The trial court overruled the objection, completed the pronouncement of sentence, and notified Lopez of his appeal rights.

Lopez now contends the condition of probation proscribing gang association and indicia must be stricken or narrowed because it: 1) is not reasonably related to the instant crime or to future criminality; 2) violates his constitutional rights of freedom of association, speech and due process; and 3) violates the terms of the plea agreement.

Relationship to Instant Crime or Future Criminality

Lopez first argues the trial court erred in imposing condition No. 15 because his relationship to a gang or gangs was not reasonably related to his present crime or to his future criminality. The People acknowledge there is nothing in the record which suggests the offense to which Lopez pled guilty was the product of gang activity. Nonetheless, the People maintain the information in the probation report about Lopez's gang connections justified the condition.

Trial courts have broad discretion to set conditions of probation in order to "foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120, 43 Cal.Rptr.2d 681, 899 P.2d 67; see § 1203.1, subd. (j); Rules of Court, rule 410.) 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." (People v. Peck (1996) 52 Cal.App.4th 351, 362, 61 Cal.Rptr.2d 1.)

However, the trial court's discretion in setting the conditions of probation is not unbounded. A term of probation is invalid if it: "(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality." (People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545.) ⁴ Conversely, "a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (Ibid.)

Condition 15 was not an abuse of the trial court's discretion in this case. Prohibitions against a variety of gang-related activities have been upheld when imposed upon juvenile offenders. (In re Laylah K (1991) 229 Cal.App.3d 1496, 1500-1502, 281 Cal.Rptr. 6; see also In re Michael D. (1989) 214 Cal.App.3d 1610, 1617, 264 Cal.Rptr. 476; In re Josh W. (1997) 55 Cal.App.4th 1, 6, 63 Cal.Rptr.2d 701.) ⁵ Because "[a]ssociation with gang members is the first step to involvement in gang activity," such conditions have been found to be "reasonably designed to prevent future criminal behavior." (In re Laylah K., supra, 229 Cal.App.3d at p. 1503, 281 Cal.Rptr. 6.) Whether the minor was currently connected with a gang has not been critical. Thus, probation terms have been approved which bar minors from being present at gang gathering areas, associating with gang members, and wearing gang clothing. (Id. at p. 1502, 281 Cal.Rptr. 6.)

We believe probationary proscriptions against gang-related conduct are equally proper when imposed upon adult offenders such as Lopez. The path from gang associations to criminal gang activity is open to adults as well as to minors. Though the courts have sometimes sustained probation conditions imposed upon a juvenile offender that would be "unconstitutional or otherwise improper" if imposed upon an adult offender, the basis for this distinction has been that a juvenile probationary order is a part of a final order, which the minor may not reject, aimed at ensuring the minor's reformation and rehabilitation, while an adult probationary order, which the defendant may reject, is an act of leniency in lieu of the prescribed statutory punishment. (In re Tyrell J. (1994) 8 Cal.4th 68, 80-82, 32 Cal.Rptr.2d 33, 876 P.2d 519.) This difference is not of material effect here. The rehabilitative point of condition 15 is the same with respect to an adult such as Lopez as it is with respect to a minor such as the juvenile in Laylah.

The federal courts, acting under the authority of federal statutes (including 18 U.S.C. § 3563, subd. (b)(6)) have found curtailments of an adult probationer's associations with specified groups to be proper where such restrictions serve a rehabilitative purpose, even where the crime in issue was not shown to have been group related. ⁶ (United States v. Showalter (7th Cir.1991) 933 F.2d 573, 575; Malone v. United States (9th Cir.1974) 502 F.2d 554, 555-556, Porth v. Templar (10th Cir.1971) 453 F.2d 330, 334.) In Malone v....