Opinion
2d Crim. No. B303034
08-18-2020
THE PEOPLE, Plaintiff and Respondent, v. JORGE OSWALDO LOPEZ, Defendant and Appellant.
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Zee Rodriguez and Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 2019029165)
(Ventura County)
Jorge Oswaldo Lopez appeals an order of probation granted after he pleaded guilty to preparing false documentary evidence and admitted serving a prior prison term. (Pen. Code, §§ 134, 667.5, subd. (b).) We direct the trial court to modify probation conditions 14 through 17 to include a scienter requirement and to strike the prior prison term allegation, but otherwise affirm.
All statutory references are to the Penal Code unless stated otherwise. --------
FACTUAL AND PROCEDURAL HISTORY
On September 3, 2019, Lopez reported to the probation department to provide a urine sample for random drug testing. During the test, the probation officer suspected that Lopez was providing urine from a pouch secreted in his clothing. When confronted, Lopez admitted that he had purchased urine because he had recently used methamphetamine.
On September 16, 2019, Lopez pleaded guilty to preparing false documentary evidence and admitted that he had served a prior prison term. On October 17, 2019, the trial court suspended imposition of sentence and placed Lopez on 36 months of formal probation, with terms and conditions including service of 300 days in county jail. The court imposed various fines and fees and awarded Lopez 89 days of presentence custody credit. Conditions of probation included prohibited association with "TOCAS" and other criminal street gangs, and possession of stolen property.
Lopez appeals and contends that: 1) the probation criminal street gang and theft conditions are vague and overbroad, and 2) the prior prison term enhancement must be struck pursuant to Senate Bill No. 136, amending section 667.5, subdivision (b). The Attorney General concedes these contentions in part.
DISCUSSION
I.
Lopez asserts that probation conditions 14 through 17 are vague and overbroad, thereby infringing upon his constitutional right to due process of law. He argues that the conditions are overbroad because they apply to all criminal street gangs, and that the conditions are unconstitutionally vague because they do not include a knowledge requirement. Lopez also claims that probation conditions 20 through 22, relating to his financial transactions, are overbroad. He points out that he objected to the conditions on these grounds during sentencing.
Conditions 14 and 15 prohibit Lopez from associating or being present in a meeting place or gathering area of any criminal street gang, including the TOCAS gang. Condition 16 prohibits Lopez from wearing evidence of affiliation of any gang, including the TOCAS gang. Condition 17 prohibits his possession of stolen property.
The Attorney General concedes that the gang and stolen property conditions must be modified to expressly include a knowledge requirement but disagrees that the conditions must be limited to the TOCAS gang only.
The trial court possesses broad discretion to determine whether to grant an eligible defendant probation and to decide the terms that promote rehabilitation and public safety. (§ 1203.1; People v. Hall (2017) 2 Cal.5th 494, 498.) A probation condition is valid if it relates to the crime for which defendant was convicted, relates to other criminal conduct, or requires or forbids conduct that is reasonably related to future criminality. (Ibid.) A probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition. (Id. at p. 500.) In addition, a probation condition must closely tailor any limitation upon a probationer's constitutional rights to prevent constitutional overbreath. (In re Sheena K. (2007) 40 Cal.4th 875, 890; People v. Leon (2010) 181 Cal.App.4th 943, 948-949 [limitations on gang association].) On appeal, we independently review questions of overbreath or vagueness. (People v. Martinez (2014) 226 Cal.App.4th 759, 765 ["Whether a term of probation is unconstitutionally vague or overbroad presents a question of law, which we review de novo"].)
As the Attorney General correctly concedes, probation conditions 14 through 17 must be modified as follows: "14. Defendant shall not associate with individuals known to him to be gang members, including, but not limited to members of the TOCAS gang. [¶] 15. Defendant shall not be present in any place he knows to be a gang gathering area, including, but not limited to the TOCAS gang. [¶] 16. Defendant shall not wear any insignia which he knows is evidence of affiliation with any gang, including, but not limited to [the] TOCAS gang. [¶] 17. Defendant shall not possess property he knows is stolen."
The probation gang conditions, however, are not constitutionally overbroad because they prohibit association or affiliation with any gang. (People v. Leon, supra, 181 Cal.App.4th 943, 951.) In 2010, Lopez was "jumped" into the TOCAS gang. Thereafter, he committed crimes in the company of other TOCAS gang members, including possession of weapons, until he claims he was "jumped out" in 2014, at age 21. Criminal street gang probation conditions have been held to be reasonably designed to prevent future criminal behavior. (People v. Martinez, supra, 226 Cal.App.4th 759, 764.) This is true although the present crime is not gang-related. (Id. at p. 765.) Lopez's age, prior gang affiliation, and pattern of criminal behavior support the trial court's conclusion that restriction from any gang-related activities is an important element of his rehabilitation. (Ibid.)
The trial court also did not abuse its discretion by imposing limitations upon Lopez's use of checks or credit cards in another person's name, or possession of computer software designed to create checks or personal identification documents (conditions 20 through 22). The record reflects that on October 10, 2018, Lopez had been granted probation in a recent case involving his conviction of identity theft. Thus, the conditions relate to Lopez's past criminal behavior and are intended to prevent future criminality. (In re Ricardo P. (2019) 7 Cal.5th 1113, 1122 [no nexus between probation and current offense required where condition reasonably related to future criminality].)
II.
Lopez argues that the prior prison term enhancement must be struck in view of the recent amendment to section 667.5, subdivision (b).
Effective January 1, 2020, Senate Bill No. 136 amended section 667.5, subdivision (b) to provide: "[T]he court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code . . . ." (Stats. 2019, ch. 590, § 1.) Lopez asserts that he may not be punished for his one-year prior prison term enhancement because his prison term was served for the unlawful possession of a concealed weapon, not for an enumerated sexually violent offense.
" 'When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final.' " (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307.)
Lopez's judgment is not yet final and thus Senate Bill No. 136 applies to him. (People v. Jennings (2019) 42 Cal.App.5th 664, 682.) The Attorney General concedes this, but points out that the trial court has not yet imposed a sentence. (People v. Johnson (2006) 142 Cal.App.4th 776, 789, fn. 4 [justiciability requirement precludes issuance of advisory opinion].) In ordering a grant of probation, the trial judge noted that he was not "at this time . . . striking the [section 667.5, subdivision] (b) prior."
We reject the Attorney General's suggestion that because the trial court has not imposed sentence, the now inapplicable one-year prior prison term enhancement should remain. This enhancement no longer applies and it must be stricken.
DISPOSITION
We direct the trial court to modify probation conditions 14 through 17 to expressly include a scienter requirement as set forth herein, and to strike the prior prison term allegation. We otherwise affirm the order.
NOT TO BE PUBLISHED.
GILBERT, P. J. We concur:
YEGAN, J.
PERREN, J.
Bruce A. Young, Judge
Superior Court County of Ventura
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Zee Rodriguez and Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent.