Filed 5/28/14

                          CERTIFIED FOR PUBLICATION



          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                    E058136

v.                                                   (Super.Ct.No. FVA1200579)

GUILLERMO ANTONIO MARTINEZ,                          OPINION

        Defendant and Appellant.



        APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,

Judge. Affirmed as modified.

        Neil Auwarter, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Anthony Da Silva and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and

Respondent.




                                            1
       Pursuant to a plea agreement, defendant and appellant Guillermo Antonio

Martinez pled no contest to resisting an executive officer (Pen. Code, § 69).1 In return,

defendant was sentenced to county prison for two years (one year suspended) with credit

for time served, plus one year of mandatory supervision under various terms and

conditions. On appeal, defendant challenges two of his mandatory supervision

conditions. For the reasons explained below, we will modify the supervision condition

concerning presence in a court building. As modified, we will affirm the order imposing

the conditions of supervision, including the challenged gang condition.

                                               I

                    FACTUAL AND PROCEDURAL BACKGROUND2

       On April 24, 2012, after receiving a dispatch call about a disturbance, Fontana

police officers drove to a residence in Fontana and contacted defendant’s mother.

Defendant’s mother informed the officers that she took defendant’s baseball cap because

defendant took her cellular telephone and would not return it to her. Defendant, who was

23 years old at the time, arrived while his mother was talking to the officers.

       One of the officers separated defendant from his mother and began questioning

him about the events leading to the disturbance. While asking defendant questions,

defendant showed the officer his tattoos and said that he no longer “‘hangs out with the

neighborhood.’” As the officer was looking at defendant’s tattoos, defendant lunged at


       1   All future statutory references are to the Penal Code unless otherwise stated.

       2   The factual background is taken from the probation officer’s report.


                                               2
and grabbed the officer’s collar, and told the officer “‘[f]uck you.’” Defendant then

began fighting the officer. Defendant was arrested.

       On May 1, 2012, defendant was charged with felony resisting an executive officer

in violation of section 69.

       On August 23, 2012, defendant pled no contest to the charge.

       Defendant informed the probation officer that he was 14 years old when he

became a member of the Calle Townsend gang in Orange County and that he was 20

years old when he ended his membership with the gang and moved to San Bernardino

County.

       The sentencing hearing was held on January 31, 2013. At that time, the trial court

indicated that it had read and considered the probation officer’s report. Defense counsel

objected to the drug terms. The court granted defense counsel’s request, over the

People’s objection, and struck the drug terms. Defense counsel also objected to the gang

terms, including term No. 24. The court denied defense counsel’s request, noting that

defendant’s altercation with the officer began once the officer asked defendant about his

gang tattoos. The court thereafter asked the parties if they had “[a]nything else [they]

want[ed] to be heard about.” Defense counsel responded in the negative, and noted the

fines should be reduced to the minimum. Defendant was thereafter sentenced to county

prison for two years (one year suspended) with credit of 38 days for time served, plus one

year of mandatory supervision under various terms and conditions as modified.




                                             3
                                              II

                                       DISCUSSION

       A.     Report to Local Police Gang Detail Condition

       Defendant contends that the trial court erred in imposing probation condition

No. 24 requiring him to report to the local police gang unit, because it is unreasonable,

there was no evidence he was currently or recently a gang member, and it has no rational

relationship to his underlying conviction for resisting an officer.

       Specifically, as a condition of supervised release, probation condition No. 24

requires defendant to “Report to the local police agency gang detail with a copy of [his]

terms and conditions and show proof to the probation officer within fourteen (14) days

from today[’]s date or release from custody.”

       As an initial matter, we note that although supervised release is to be monitored by

county probation officers “in accordance with the terms, conditions, and procedures

generally applicable to persons placed on probation” (§ 1170, subd. (h)(5)(B)(i)), “this

does not mean placing a defendant on mandatory supervision is the equivalent of granting

probation or giving a conditional sentence. Indeed, section 1170, subdivision (h), comes

into play only after probation has been denied.” (People v. Fandinola (2013) 221

Cal.App.4th 1415, 1422, citing People v. Cruz (2012) 207 Cal.App.4th 664, 671 [“‘once

probation has been denied, felons who are eligible to be sentenced under realignment will

serve their terms of imprisonment in local custody rather than state prison’”].)

“Moreover, section 667.5 provides for a one-year enhancement for ‘prior prison terms,’

including a ‘term imposed under the provisions of paragraph (5) of subdivision (h), of


                                              4
[s]ection 1170, wherein a portion of the term is suspended by the court to allow

mandatory supervision.’ (§ 667.5, subd. (b).) Thus, the Legislature has decided a county

jail commitment followed by mandatory supervision imposed under section 1170,

subdivision (h), is akin to a state prison commitment; it is not a grant of probation or a

conditional sentence.” (Fandinola, supra, at p. 1422.) Therefore, as the court in

Fandinola recently found, “mandatory supervision is more similar to parole than

probation.” (Id. at p. 1423.) We will therefore analyze the validity of the terms of

supervised release under standards analogous to the conditions or parallel to those applied

to terms of parole.

       “In California, parolee status carries distinct disadvantages when compared to the

situation of the law-abiding citizen. Even when released from actual confinement, a

parolee is still constructively a prisoner subject to correctional authorities. [Citations.]

The United States Supreme Court has characterized parole as ‘an established variation on

imprisonment’ and a parolee as possessing ‘not . . . the absolute liberty to which every

citizen is entitled, but only . . . the conditional liberty properly dependent on observance

of special parole restrictions.’ [Citations.] Our own Supreme Court holds a like opinion:

‘Although a parolee is no longer confined in prison his custody status is one which

requires . . . restrictions which may not be imposed on members of the public generally.’

[Citations.]” (People v. Lewis (1999) 74 Cal.App.4th 662, 669-670.)

       The fundamental goals of parole are “‘to help individuals reintegrate into society

as constructive individuals’ [citation], ‘“to end criminal careers through the rehabilitation

of those convicted of crime”’ [citation] and to [help them] become self-supporting.” (In


                                               5
re Stevens (2004) 119 Cal.App.4th 1228, 1233.) In furtherance of these goals, “[t]he

state may impose any condition reasonably related to parole supervision.” (Ibid.) These

conditions “must be reasonably related to the compelling state interest of fostering a law-

abiding lifestyle in the parolee.” (Id. at p. 1234.)

       The validity and reasonableness of parole conditions is analyzed under the same

standard as that developed for probation conditions. (In re Hudson (2006) 143

Cal.App.4th 1, 9; In re Stevens, supra, 119 Cal.App.4th at p. 1233 [“[t]he criteria for

assessing the constitutionality of conditions of probation also applies to conditions of

parole”].) “A condition of [parole] will not be held invalid unless 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 . . . .’ [Citation.] Conversely, a condition of [parole] 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.” (People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted, superseded on

another ground by Proposition 8 as stated in People v. Wheeler (1992) 4 Cal.4th 284,

290-292; see also People v. Olguin (2008) 45 Cal.4th 375, 379-380.)

       In general, the courts are given broad discretion in fashioning terms of 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; People v.

Urke (2011) 197 Cal.App.4th 766, 774.) Thus, the imposition of a particular condition of

probation is subject to review for abuse of that discretion. “As with any exercise of


                                               6
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.)

       Defendant contends the challenged gang condition here is unreasonable because

his offense was not gang related, he denied being a current or recent gang member or

being involved in a gang, he had been “jumped out” of the gang about three years earlier

when he was 20 years old, and the condition is not reasonably calculated to prevent future

criminality.3 We disagree.

       It has been noted that association with gang members is the first step to

involvement in gang activity, so gang conditions have been found to be “‘reasonably

designed to prevent future criminal behavior.’ [Citation.]” (People v. Lopez (1998) 66

Cal.App.4th 615, 624 (Lopez).) “[P]robationary proscriptions against gang-related

conduct [have been found] equally proper when imposed upon adult[s] . . . . The path

from gang associations to criminal gang activity is open to adults as well as to minors.”

(Id. at p. 625.) Moreover, the federal courts “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.” (Ibid.)




       3 Defendant does not challenge the conditions requiring him to not associate with
known gang members, display gang signs, and wear gang attire, conceding these
conditions were minimal intrusions and calculated at preventing future criminality.


                                             7
       Here, the probation officer’s report discloses that defendant had a lengthy history

of juvenile offenses and that he had committed gang-related crimes in 2004 and 2006. In

addition, defendant had admitted membership in the Calle Townsend gang. Although

defendant is an adult, he was only 23 at the time of sentencing and had only recently been

“jumped out” of his gang. Furthermore, even though the current crime was apparently

not gang-related, defendant lunged at and grabbed an officer while the officer was

inspecting defendant’s gang tattoos. Defendant’s age, gang affiliation, and consistent

pattern of criminal behavior warranted a conclusion by the court that his “disassociation

from gang-connected activities was an essential element of any probationary effort at

rehabilitation because it would insulate him from a source of temptation to continue to

pursue a criminal lifestyle. [Citations.]” (Lopez, supra, 66 Cal.App.4th at p. 626.)

       Probation condition No. 24 simply requires defendant to report to the local police

agency gang detail with a copy of his mandatory supervision conditions. It does not

require registration as a gang member. It is a term that allows the local law enforcement

agency to be aware of defendant’s mandatory supervision status and help his parole

officer ensure defendant’s compliance with his mandatory supervision conditions.

Consequently, this condition is reasonably related to future criminality, and thus the trial

court did not abuse its discretion when it imposed this condition.

       B.     Condition Prohibiting Defendant from a Court Building

       Defendant also challenges mandatory supervision condition No. 28, which

prevents his presence at “any court building, including the lobby, hallway, courtroom, or

parking lot unless” he is a party, defendant or witness. Defendant argues that the


                                              8
condition should be stricken in its entirety because he is not currently involved in a gang,

it is overly broad, and it infringes on his First Amendment right to access to the courts.

The People respond that defendant is barred from raising this claim for the first time on

appeal; and that the condition should be modified, not stricken, if this court addresses

defendant’s claim on the merits.

       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 condition No. 28.

       Conditions of probation restricting a defendant from appearing in court unless he

or she is a party or a witness have been upheld as valid gang conditions in prior published

decisions. (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1502; Lopez, supra, 66

Cal.App.4th at pp. 624-625.) Schools and courthouses are “known gang gathering areas”

and the restriction on court attendance is aimed at preventing the gathering of gang

members to intimidate witnesses at court proceedings. (In re Laylah K. at p. 1502.)

       More recently, however, NBC Subsidiary (KNBC–TV), Inc. v. Superior Court

(1999) 20 Cal.4th 1178 extensively analyzed United States Supreme Court precedent

before concluding that there is a First Amendment right of public access to court

proceedings, both criminal and civil (id. at pp. 1207-1209), and that court proceedings

may be closed only in limited and specific circumstances. (Id. at pp. 1217-1218.)


                                              9
       In People v. Perez (2009) 176 Cal.App.4th 380 (Perez), the Second District Court

of Appeal considered the constitutionality of a probation condition that prohibited the

probationer from attending any court hearing or being within 500 feet of any court in

which the defendant was neither a defendant nor a subpoenaed witness. (Id. at p. 383.)

The court concluded that the condition imposed unnecessary restrictions on the

probationer’s “right to access the courts and government offices” (id. at p. 385), so the

court struck the condition and remanded the case to the trial court to “impose a narrower

condition if it deems necessary.” (Id. at p. 386.)

       In People v. Leon (2010) 181 Cal.App.4th 943, the Sixth District Court of Appeal

considered a constitutional challenge to a condition that stated, “‘You shall not appear at

any court proceeding unless you’re a party, you’re a defendant in a criminal action,

subpoenaed as a witness, or with permission of probation.’” (Id. at p. 952.) To limit

infringement on the defendant’s First Amendment right of access to court proceedings,

Leon modified the condition to provide: “You shall not be present at any court

proceeding where you know or the probation officer informs you that a member of a

criminal street gang is present or that the proceeding concerns a member of a criminal

street gang unless you are a party, you are a defendant in a criminal action, you are

subpoenaed as a witness, or you have the prior permission of your probation officer.”

(Id. at p. 954.)

       In In re E.O. (2010) 188 Cal.App.4th 1149 (E.O.), a different panel of the Sixth

District Court of Appeal considered the constitutionality of a condition that stated “‘[t]hat

said minor not knowingly come within 25 feet of a Courthouse when the minor knows


                                             10
there are criminal or juvenile proceedings occurring which involves [sic] anyone the

minor knows to be a gang member or where the minor knows a witness or victim of

gang-related activity will be present, unless the minor is a party in the action or

subpoenaed as a witness or needs access to the area for a legitimate purpose or has prior

permission from his Probation Officer.’” (Id. at p. 1152.)

       Even though the challenged condition was limited to criminal proceedings

involving gang members, E.O. concluded that it was overbroad. (E.O., supra, 188

Cal.App.4th at p. 1157.) The opinion noted that another unchallenged condition

prohibiting gang activity would seem to serve the apparent concern of this challenged

condition of preventing “intimidation by gang members of witnesses to or victims of

crimes with which other gang members are charged.” (Id. at p. 1155.) Following Perez,

E.O. struck the condition rather than modifying it and indicated that the trial court should

hold a new hearing to reconsider the necessity and purpose of the condition if requested

by either party. (Id. at pp. 1157-1158.) In a lengthy footnote, E.O. also suggested

appropriate language if the trial court were to find such a restriction justified.

       Defendant, distinguishing Leon, argues that because the defendant in Leon was

found to be currently involved with a gang, unlike here where the only evidence was that

defendant was involved in a gang until age 20 and in a different county, it would not be

proper to modify the courthouse condition. The People assert that we should modify

defendant’s condition as suggested by the Leon court.

       Because this condition was added as part of defendant’s gang terms, it appears to

be intended to prevent him from intimidating witnesses in gang-related proceedings.


                                              11
Furthermore, as discussed above, the gang-related conditions are proper and reasonable

in this case. With judicial economy in mind, instead of simply striking the condition as

did Perez and E.O. to give the trial court an opportunity to reformulate it, we believe that

the existing condition can be adequately tailored to balance defendant’s constitutional

rights and legitimate concerns for the integrity of the judicial process. Accordingly, we

will modify mandatory supervision condition No. 28 to state as follows: “You shall not

be present at any criminal court proceeding or at any criminal courthouse building,

including the lobby, hallway, courtroom, or parking lot that you know or reasonably

should know involves either criminal street gang charges or a person associated with a

criminal street gang (as defined in Penal Code section 186.22) as a member or witness,

unless you are scheduled for a court hearing as a party, defendant, or subpoenaed as a

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

probation officer, or have other lawful business with the court or county administration.”

       We are mindful that this revision differs from those in Leon and E.O., but there

have been a number of approved formulations of a scienter requirement. (See, e.g.,

People v. Garcia (1993) 19 Cal.App.4th 97, 102; Lopez, supra, 66 Cal.App.4th 615, 622,

628, 634, 638; In re Sheena K., supra, 40 Cal.4th at pp. 891-892; In re Justin S. (2001)

93 Cal.App.4th 811, 816; People v. Turner (2007) 155 Cal.App.4th 1432, 1436.) We

have incorporated the one employed in People v. Turner, supra, 155 Cal.App.4th 1432

because this phrasing has already been evaluated for vagueness by the California

Supreme Court, albeit in the context of a criminal statute, not a probation or mandatory

supervision condition.


                                             12
                                            III

                                     DISPOSITION

       The trial court is directed to prepare a new order modifying mandatory supervision

condition No. 28 to state: “You shall not be present at any criminal court proceeding or

at any criminal courthouse building, including the lobby, hallway, courtroom, or parking

lot that you know or reasonably should know involves either criminal street gang charges

or a person associated with a criminal street gang (as defined in Penal Code section

186.22) as a member or witness, unless you are scheduled for a court hearing as a party,

defendant, or subpoenaed as a witness to a criminal court proceeding, or have the express

permission of your probation officer, or have other lawful business with the court or

county administration.” As modified, the judgment is affirmed.

       CERTIFIED FOR PUBLICATION


                                                              RAMIREZ
                                                                                        P. J.
We concur:



McKINSTER
                          J.



KING
                          J.




                                            13
