Filed 12/3/13 P. v. Smith CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057023

v.                                                                       (Super.Ct.No. FSB1201823)

EREK KERNELL SMITH,                                                      OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson,

Jr., Judge. Affirmed as modified.

         Jesse W.J. Male, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, William M. Wood and Ifeolu

E. Hassan, Deputy Attorneys General, for Plaintiff and Respondent.




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         Defendant and appellant Erek Kernell Smith pled no contest to one count of street

terrorism. (Pen. Code, § 186.22, subd. (a).)1 The parties stipulated that defendant was a

member of a criminal street gang, and that he actively committed a felony offense. The

court placed him on probation for a period of three years under certain probation

conditions.

         On appeal, defendant contends that certain probation conditions should be

modified. The People concede, and we agree, that the probation conditions at issue

should be modified. As modified, we affirm the judgment.

                               PROCEDURAL BACKGROUND

         On August 8, 2012, the trial court placed defendant on probation, under certain

terms. One of the terms provided that defendant shall “[n]ot possess any type of drug

paraphernalia, as defined in [Health and Safety Code section] 11364.5[, subdivision] (d).”

(Term No. 12.) The court stated that, on August 28, 2012, it would be adding gang-

related terms, upon argument of counsel. Defendant agreed.

         At a hearing on August 28, 2012, the court added more probation terms, including

the following: Term No. 20: “Not associate with persons known to defendant to be gang

members or frequent places of known gang activity”; Term No. 26: “Not display any

gang hand signs”; Term No. 28: “Not wear, display or have in your possession any item

associated with gang dress or any items prohibited by the probation officer”; and Term

No. 29: “You shall not appear at any court building, including the lobby, hallway,

         1   All further statutory references will be to the Penal Code, unless otherwise
noted.


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courtroom, or parking lot unless you are a party, defendant, or [subpoenaed as a witness

to a court proceeding].” Defendant did not object to any of these probation conditions.

                                         ANALYSIS

                  The Probation Conditions at Issue Should Be Modified

       Defendant contends that several of his probation conditions are unconstitutionally

overbroad or vague and should be modified. The People concede, and we agree.

       A. Standard of Review

       In general, the courts are given broad discretion in fashioning terms of probation

or supervised release, in order to foster the reformation and rehabilitation of the offender,

while protecting public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) Thus,

the imposition of a particular condition of probation is subject to review for abuse of that

discretion. “As with any exercise of discretion, the court violates this standard when it

imposes a condition of probation that is arbitrary, capricious or exceeds the bounds of

reason under the circumstances. [Citation.]” (People v. Jungers (2005) 127 Cal.App.4th

698, 702.) However, constitutional challenges are reviewed under a different standard.

Whether a term of probation is unconstitutionally vague or overbroad presents a question

of law, which we review de novo. (In re Sheena K. (2007) 40 Cal.4th 875, 888.) The

failure to object below that a condition is unconstitutionally overbroad does not forfeit

review of the issue on appeal. (Id. at p. 889; People v. Quiroz (2011) 199 Cal.App.4th

1123, 1127 [Fourth Dist., Div. Two].) We will therefore consider defendant’s challenge

to the constitutionality of the conditions.




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       B. Term No. 12

       Term No. 12 provides that defendant shall “[n]ot possess any type of drug

paraphernalia, as defined in [Health and Safety Code section] 11364.5[, subdivision]

(d)].” This statute describes “drug paraphernalia” as including any kind of product used

for “introducing into the human body a controlled substance.” (Health & Saf. Code,

§ 11364.5, subd. (d).) This definition appears to include devices used with medically

prescribed controlled substances. Thus, defendant contends that the probation condition

is overbroad since there is no rehabilitative interest in preventing him from using

instruments that may be necessary for taking prescription medication. We agree and

grant defendant’s request to modify condition No. 12. It is modified to read: “Not

possess any type of drug paraphernalia, as defined in Health & Safety Code section

11364.5, subdivision (d), except for any item used to administer a medication defendant

was medically prescribed.”

       C. Term No. 20

       Term No. 20 provides that defendant “[n]ot associate with persons known to

defendant to be gang members or frequent places of known gang activity.” Defendant

contends that this condition is vague because the term “frequent” is ambiguous. We

agree. (People v. Leon (2010) 181 Cal.App.4th 943, 952 (Leon) [holding the word

“frequent” rendered a similar condition unconstitutionally vague because it was “both

obscure and ha[d] multiple meanings.”]) Accordingly, we will modify term No. 20 to

read: “Not associate with persons known to defendant to be gang members or visit places




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of known gang activity.” (See Id. at p. 952; see also § D., post, for further modifications

to this term.)

       D. Term Nos. 20, 26, and 28

       Defendant asserts that condition Nos. 20, 26, and 28 all use the word “gang,”

without providing a definition of the word “gang.” They read as follow:

       “20. Not associate with persons known to defendant to be gang members or

frequent places of known gang activity.”

       “26. Not display any gang hand signs.”

       “28. Not wear, display or have in your possession any item associated with gang

dress or any items prohibited by the probation officer.”

       Defendant requests that these probation conditions be modified to include a

reference to Penal Code section 186.22, subdivision (f), which defines a “criminal street

gang.” We agree and will modify the conditions accordingly.

       E. Term No. 29

       Term No. 29 prohibits defendant from appearing at “any court building, including

the lobby, hallway, courtroom, or parking lot unless [he is] a party, defendant or

[subpoenaed as a witness to a court proceeding].” Because this term was added as part of

defendant’s gang terms, it appears to be intended to prevent him from intimidating

witnesses in gang-related proceedings. Defendant argues, however, that the term is so

broadly written that it prevents him from attending the courts for legitimate and lawful

purposes, and from accessing any governmental office that shares facilities with a court.

Thus, he contends that it infringes on his First Amendment right of access to the courts.


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The People concede, and we agree, that the term is overbroad. (See Leon, supra, 181

Cal.App.4th at pp. 952-953 [holding that a similar condition was unconstitutionally

broad].) Accordingly, we will modify the term to read: “You shall not appear at any

criminal court proceeding or at any criminal courthouse building, including the lobby,

hallway, courtroom, or parking lot unless you are a party, defendant, or subpoenaed as a

witness to a criminal court proceeding, or you have the express permission of your

probation officer.”

                                     DISPOSITION

       We hereby modify defendant’s probation conditions as follows:

       Term No. 12 is modified to read: “Not possess any type of drug paraphernalia, as

defined in Health and Safety Code section 11364.5, subdivision (d), except for any item

used to administer a medication defendant was medically prescribed.”

       Term No. 20 is modified to read: “Not associate with persons known to defendant

to be gang members or visit places of known gang activity. For purposes of this

paragraph, the word “gang” means a “criminal street gang” as defined in Penal Code

section 186.22, subdivision (f).”

       Term No. 26 is modified to read: “Not display any gang hand signs. For purposes

of this paragraph, the word “gang” means a “criminal street gang” as defined in Penal

Code section 186.22, subdivision (f).”

       Term No. 28 is modified to read: “Not wear, display or have in your possession

any item associated with gang dress or any items prohibited by the probation officer. For




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purposes of this paragraph, the word “gang” means a “criminal street gang” as defined in

Penal Code section 186.22, subdivision (f).”

       Term No. 29 is modified to read: “You shall not appear at any criminal court

proceeding or at any criminal courthouse building, including the lobby, hallway,

courtroom, or parking lot unless you are a party, defendant, or subpoenaed as a witness to

a criminal court proceeding, or you have the express permission of your probation

officer.”

       As modified, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                              HOLLENHORST
                                                                        Acting P. J.


We concur:


McKINSTER
                          J.


MILLER
                          J.




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