People v. Rodriguez

• Decision Date: 19 March 2014
• Docket Number: H039137
• Citation: 166 Cal.Rptr.3d 187,222 Cal.App.4th 578
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Raymundo Escutia RODRIGUEZ, Defendant and Appellant.

222 Cal.App.4th 578

166 Cal.Rptr.3d 187

The PEOPLE, Plaintiff and Respondent,

v.Raymundo Escutia RODRIGUEZ, Defendant and Appellant.

H039137

Court of Appeal, Sixth District, California.

Filed December 20, 2013

Review Denied March 19, 2014

See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 652 et seq.

Honorable Efren N. Iglesia, Judge (Monterey County Super. Ct. No. SSC120174A)

Christopher J. Wei, Office of the Attorney General, Attorney for Plaintiff/Respondent

Julie Ann Dunger, Attorney at Law, Sixth District Appellate Program, Attorney for Defendant/Appellant

Grover, J.

I. INTRODUCTION

We are asked once again to consider whether various probation conditions are unconstitutionally vague and overbroad without an explicit scienter element. A related claim is that an explicit constructive knowledge requirement is unconstitutional. We will conclude that the constructive knowledge element in three probation conditions is not vague. We will also conclude that scienter is implicit in some of the challenged conditions, although a knowledge element should be added to cure concerns about a prohibition on the use or possession of “intoxicants.” As to a stay-away provision that refers only to “the victim” when there were two victims, we will reverse the judgment so the trial court can eliminate the ambiguity.

II. TRIAL COURT PROCEEDINGS

A. UNDERLYING OFFENSES AND PLEA

According to the probation report, in the early morning of July 30, 2012, Soledad police officers responded to a report of two males “banging on vehicles” and apprehended defendant Raymundo Rodriguez, then 18 years old, and a 17–year–old male as they tried to hide in a bush. They were arrested along with an 18–year–old female. A car stereo was located near the males. “Victim 1” later described that two windows were broken on her 1993 Honda Accord and a car stereo was missing. Victim 2 never responded to later inquiries as to the extent of any property loss.

Defendant appeared intoxicated at the time of his arrest. At the police station, he repeatedly advised his female companion to keep quiet and he told the male to “request ‘K–Pod’ ” in the jail. Defendant shouted gang slogans including “ ‘SVL’ ” during the booking process and called the booking officer names. He was wearing black gloves and a red T-shirt and baseball jacket.

Defendant had been documented by the Soledad Police Department as member of the Norteño criminal street gang Soledad Vatos Locos. He admitted to a probation officer in this case that he “hangs around” with Norteño gang members, and the same probation officer noted defendant had several gang-related tattoos.

A complaint filed July 31, 2012 charged defendant with burglary of a commercial building occupied by Maria Amador (count 1; Pen.Code, § 459), ¹ attempted burglary of a commercial building occupied by Dale Terry (count 2; §§ 664, 459), dissuading a witness from reporting a crime (count 3; § 136.1, subd. (b)(1)), and resisting arrest (count 4; § 148, subd. (a)(1)).²

On August 23, 2012, in exchange for a grant of felony probation, defendant agreed to waive preliminary hearing and plead guilty to an added charge of receiving or concealing stolen property (count 5; § 496), with the understanding that it could be reduced to a misdemeanor after 18 months without a probation violation. (§ 17, subd. (b).) Defendant signed and initialed a written waiver of rights form and entered a guilty plea.

B. CONDITIONS OF PROBATION

A probation report was prepared which noted that, since pleading guilty, defendant was charged with misdemeanor public intoxication and resisting arrest on September 1, 2012.

The report recommended suspending imposition of sentence in the felony case and placing defendant on formal probation with 20 conditions, including:

“7. Pay victim restitution to Victim 1 in the amount of $942.38, and to Victim 2, in an amount to be determined by the Probation Officer. Liability for restitution is joint and several with [the juvenile arrested with defendant]. This order is enforceable as a civil judgment. (PC § 1202.4(a)(3)(B), § 1202.4(i))

“8. Not use or possess alcohol, intoxicants, narcotics, or other controlled substances without the prescription of a physician; not traffic in, or associate with persons you know, or have reason to know, to use or traffic in, narcotics or other controlled substances. [¶] ... [¶]

“10. Not possess, receive or transport any firearm, ammunition or any deadly or dangerous weapon. Immediately surrender any firearms or ammunition you own or possess to law enforcement. (PC 12021) [¶] ... [¶] “12. Stay away at least 100 yards from the victim, the victim's residence or place of employment, and any vehicle the victim owns or operates.

“13. Participate in any counseling or substance abuse program the Probation Officer deems necessary, including approved residential treatment....

“14. Not visit or remain in any area you know, have reason to know, or are told by the Probation Officer to be a gang-gathering area. (The term ‘gang’ in these conditions of probation refers to ‘criminal street gang’, as defined in PC § 186.22.)

“15. Not associate with any individuals you know, have reason to know, or are told by the Probation Officer to be gang members, drug users, or on any form of probation or parole supervision. [¶] ... [¶]

“17. Not possess, wear, use or display any item you know, have reason to know, 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 colors red and blue.

“18. Do not obtain any new tattooing upon your person while on probation supervision. You shall permit photographing of any tattoos on your person by law enforcement.”

At the sentencing hearing on December 5, 2012, defendant pleaded guilty to public intoxication in his new case, and then made the following objections to probation conditions as numbered in the probation report: 14, 15, 17, and 18 were inapplicable as the crime was not gang-related; 14, 15, and 17 were vague as not specifying the requisite knowledge element; 8 and 13 were unwarranted absent evidence of substance abuse; and a receiving stolen property charge does not justify the victim restitution in 7. The prosecutor responded that the gang terms and victim restitution were justified by the facts.

Defense counsel assented to the court imposing probation conditions “by reference to the page and the paragraph numbers” in the probation report. The trial court suspended imposition of sentence for three years pursuant to the plea agreement and placed defendant “on formal probation under the terms and conditions set forth on pages 12 through 14 of the probation officer's report. [¶] The Court notes the objection of Counsel on behalf of the defendant. However, the Court is persuaded that the restitution provisions on page 7 or paragraph 7 should remain.”

The court continued: “the Court is leaving that intact in [paragraph 8] regarding possession of alcohol and intoxicants. Exhibit A is your plea to the public intoxication charge. So I would leave that intact. [¶] The counseling and abuse, substance abuse program on paragraph 13, the Court will keep that as part of your conditions of probation. And the gang conditions 14, 15, 16, 17, I believe there is nexus for the imposition of those conditions and that they appear on the page 7 of the report where you apparently—or the probation and police records indicate that you are a known Norteño gang member. You denied that, but later on you indicated that you hang around with them. [¶] So that, if there's any—you're on the brink of being a member of those gangs, this is time to break off or not to involve yourself with them. [¶] So paragraphs 13 through 17 remain intact.” The court did not expressly address the vagueness claims.

On December 12, 2012, the trial court signed a minute order for the December 5, 2012 hearing that purported to list the probation conditions imposed, although without corresponding numbering.

III. ANALYSIS

A. STANDARD OF REVIEW

We review probation conditions for abuse of discretion and will uphold the trial court's broad discretion so long as a challenged condition relates 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 (Olguin ).) The reasonableness of a probation condition may be challenged on appeal 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.).) However, a reviewing court may examine the constitutionality of a probation condition, even if not raised 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.)

On appeal defendant does not renew his reasonableness challenges to conditions 7, 8, 13, 14, 15, 17, and 18. He renews his vagueness challenges to conditions 14, 15, and 17, and newly asserts that conditions 8, 10, and 12 are vague and overbroad.

B. IDENTIFYING THE PROBATION CONDITIONS TO REVIEW

When we are asked to review the reasonableness or constitutionality of probation conditions, we often find multiple versions of the conditions in the record, including a set of proposed conditions in a probation report, the trial court's oral statement of the conditions imposed, and a minute order memorializing the conditions imposed at the hearing. The practice in Monterey County is for the judges to sign the minute orders, as occurred in this case.

The...