Filed 9/15/16 P. v. Espinoza CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069089

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. JCF35369)

OSCAR STEVEN ESPINOZA,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of Imperial County, Diane B.

Altamirano, Judge. Affirmed as modified.

         Britton Donaldson, under appointment of the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C.

Cavalier and Kristen Hernandez, Deputy Attorneys General, for Plaintiff and

Respondent.
      Oscar Espinoza appeals the terms of his probation, imposed after Espinoza

pleaded no contest to violating Health and Safety Code section 11379, subdivision (a),

possession of controlled substance for sale, and Vehicle Code section 10851,

subdivision (a), unlawful driving or taking of a vehicle. Espinoza contends that the

three conditions of his probation pertaining to gang affiliation should be stricken

under People v. Lent (1975) 15 Cal.3d 481 (Lent)). On this point, we disagree.

Espinoza argues in the alternative, that two of the gang conditions are unconstitutionally

vague and should be modified to include a knowledge requirement. The People

concede this point, and we therefore modify Espinoza's probation conditions

accordingly.

                 FACTUAL AND PROCEDURAL BACKGROUND

      The pertinent facts in this case are undisputed. The victim, Fernando Lopez,

lent his car to Espinoza and codefendant Denise Estrada. The next day, Lopez asked

Espinoza and Estrada to return his car. Espinoza and Estrada refused, and Espinoza

said that if Lopez went to the police he would kill Lopez's children and family.

      Several days later, Officer Peter West observed Estrada driving Lopez's vehicle

very slowly with Espinoza in the front passenger seat. West ran the license plates,

discovered the vehicle was reported stolen and, after stopping the vehicle, learned that

Espinoza and Estrada were listed as carjacking suspects. West and another officer

searched the vehicle and found multiple bindles of methamphetamine, marijuana, and



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a glass pipe containing methamphetamine residue. The officers then arrested

Espinoza and Estrada.

        During Espinoza's probation interview he admitted that he joined the North

Side Centro 12 criminal street gang when he was 12 years old and that his moniker

was Tito. Espinoza also admitted that he associated with Southsiders criminal street

gang while he was in county jail. Espinoza claims he is no longer affiliated with any

gang.

        Espinoza entered a plea of no contest to one count of possession of a controlled

substance for sale and one count of unlawful driving or taking of a vehicle. (Health &

Saf. Code, § 11379 subd. (a); Veh. Code, § 10851.) At sentencing, the trial court

ordered appellant to probation on various conditions, including:

           "7. Defendant shall not affiliate or associate with any known and
           identifiable gang members and stay away from where such
           persons congregate.

           "8. Defendant shall not exhibit any insignia or other indicia of
           gang affiliation, nor possess or wear any insignia or clothing
           associated with any gang.

           "9. Defendant shall not acquire any tattoos depicting gang or
           criminal affiliation including dots or teardrops."

                                        ANALYSIS

        Espinoza contends that all three conditions are invalid under Lent, supra,

15 Cal.3d 481, and that conditions 8 and 9 are unconstitutionally vague for lack of a

knowledge requirement. We turn first to the validity of the probation conditions under

Lent.
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                                              A

       "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. Lopez (1998) 66 Cal.App.4th 615, 624 (Lopez).) Under Lent, "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." (Lent, supra, 15 Cal.3d at p. 486.)

       "Because '[a]ssociation with gang members is the first step to involvement in gang

activity,' [conditions forbidding gang association] have been found to be 'reasonably

designed to prevent future criminal behavior.' " (Lopez, supra, 66 Cal.App.4th at p. 624,

quoting In re Laylah K. (1991) 229 Cal.App.3d 1496, 1503.) Similarly, restricting "the

display of gang indicia [is] reasonable because it remove[s] . . . visible reminders of . . .

past gang connection." (Lopez, supra, at p. 624.) However, where a defendant has no

gang affiliation or other gang-related history and his underlying offense had nothing to do

with a gang, conditions forbidding association with gang members have been held

improper for lack of reasonable relation to future criminality. (See People v. Brandão

(2012) 210 Cal.App.4th 568, 576-577 (Brandão).)

       Espinoza admitted that he had affiliated with one gang as a 12 year old, and

another gang while in county jail. The trial court could reasonably infer an increased risk

Espinoza may associate with gangs, and participate in criminal gang activity in the future,

from his criminal record and associations with gangs in the past. Forbidding Espinoza

from associating with gang members impedes his participation in criminal gang activity,

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therefore, the condition of his probation to that effect reasonably relates to future

criminality. (Lopez, supra, 66 Cal.App.4th at p. 624.) For similar reasons, conditions

forbidding the exhibition of gang affiliation through Espinoza's choice of attire or tattoo

reasonably relate to future criminality. Exhibitions of gang affiliation facilitate gang

association. Displays of gang indicia remind the probationer of his past gang affiliation,

and signal to others, including gang members, a willingness to associate with gang

members. (Ibid.) Because they reasonably relate to future criminality, it was within the

trial court's discretion to impose conditions of probation limiting Espinoza's association

or exhibition of affiliation with gangs.

         Because reasonable relation to future criminality is sufficient to uphold a

probation condition under Lent, we need not address whether the conditions relate to the

crime of which Espinoza was convicted or relate to conduct which is not itself criminal.

(Lent, supra, 15 Cal.3d at p. 486.) We turn instead, to the vagueness of conditions 8

and 9.

                                               B

         "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 challenge on the ground of vagueness." (In re Sheena K.

(2007) 40 Cal.4th 875, 890.) In People v. Leon (2010) 181 Cal.App.4th 943 (Leon), the

court analyzed a condition similar to those at issue in the instant case: " 'No insignia,

tattoos, emblem, button, badge, cap, hat, scarf, bandanna, jacket, or other article of

clothing which is evidence of affiliation with or membership in a gang.' " (Id. at p. 950 .)

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There, the court held the condition was constitutionally defective for lack of an explicit

knowledge requirement. (Ibid.)

       Espinoza contends, and the People concede, that conditions 8 and 9 are defective

for the same reason the condition at issue in Leon, supra, 181 Cal.App.4th 943 was

defective. Both parties suggest that the conditions be modified to include an explicit

knowledge requirement. We agree, and modify the conditions accordingly.

                                      DISPOSITION

       Probation condition 8 is modified to provide as follows: "Defendant shall not

exhibit any insignia or other indicia of gang affiliation known to be such by defendant,

nor possess or wear any insignia or clothing associated with any gang known to be such

by defendant." Probation condition 9 is modified to provide as follows: "Defendant shall

not acquire any tattoos depicting gang or criminal affiliation known to be such by

defendant, including dots or tear drops." The order is affirmed as modified.



                                                                  HUFFMAN, Acting P. J.

WE CONCUR:



                      HALLER, J.



                     PRAGER, J.*


*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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