Filed 7/1/13 P. v. Rodriguez CA
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038431
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS120724)

         v.

JORGE RODRIGUEZ,

         Defendant and Appellant.



         In a negotiated disposition, defendant Jorge Rodriguez pleaded no contest to
carrying a loaded firearm in a public place (Pen. Code, § 25850, subd. (a)(2))1 and
misdemeanor street terrorism (§ 186.22, subd. (a)) and admitted a special allegation that
he knew or reasonably should have known that the firearm was stolen (§ 25850,
subd. (c)(2)). The trial court suspended imposition of sentence and placed him on felony
probation for three years. On appeal, defendant challenges four of his probation
conditions as unconstitutionally vague and/or overbroad. We conclude that the “stay-
away” condition is impermissibly vague but reject defendant‟s other contentions. We
reverse the order and remand the case to permit the trial court to clarify the stay-away
condition.


1
         Further statutory references are to the Penal Code unless otherwise noted.
                                     I. Background
       Because there was no preliminary examination, we take the facts from the
probation report.
       On March 1, 2012, Soledad Police Department gang officers e-mailed fellow
officers that they had received information that defendant “was in possession of a
handgun with orders to take out (kill) any Norteno gang drop out [sic] on sight.”
Defendant “was looking to put in work, or commit violent criminal acts for the gang,” the
e-mail explained, “to establish a name for himself within the Norteno Criminal Street
Gang.” On April 18, 2012, an e-mail sent out for officer safety purposes advised that
“Norteno shot callers (gang leaders) had ordered street gang members to shoot gang drop
outs [sic] on sight. They were also ordered to wear black hooded sweaters, or sweatshirts
with their hoods on at all times.” The e-mail said defendant had recently been seen in a
YouTube video with known Norteños, openly wearing gang colors, displaying gang
signs, and showing gang tattoos. He had also been seen in photographs with known gang
members, some of whom had recently been arrested for a gang-related drive-by shooting.
       Around 6:00 p.m. on April 18, 2012, officers arriving for a community
presentation at a Soledad middle school saw defendant, wearing a dark black and gray
hooded jacket, walking in front of the school. Aware that he was on probation with
search and gang conditions, officers searched him for weapons and found a nine
millimeter handgun concealed in the waistband of his pants. The gun was “loaded with
two bullets,” and the magazine contained “eight live bullets.” A records check revealed
that the gun had been reported stolen in Bakersfield.
       Defendant was arrested and booked into the county jail. He entered his pleas and
admission in May, was placed on probation in June, and filed a timely notice of appeal.




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                                       II. Discussion
                                 A. Stay-Away Condition
       Condition No. 13 requires defendant “to stay away from any public school unless
you are a registered student at that school or have permission in advance from your
probation officer.” Defendant contends that the condition is unconstitutionally vague and
unreasonably overbroad.
       Citing this court‟s decision in People v. Barajas (2011) 198 Cal.App.4th 748
(Barajas), the Attorney General concedes that a proximity descriptor must be added. She
suggests we modify the condition to state that defendant must stay at least 150 feet away
from any public school. That “resolves part of the problem,” defendant responds, “but
still leaves unresolved the parameters of the word „school.‟ ” The condition is also
unreasonably overbroad, he argues, because it appears to “banish” him from areas “where
he legitimately might be without any appreciable risk of increase in criminality” and from
areas “where he must be in order to further his rehabilitation.” We agree that the
condition is vague and must be modified, but we reject defendant‟s overbreadth
challenge.
       A trial court has broad discretion to impose such reasonable probation conditions
“as it may determine are fitting and proper to the end that justice may be done . . . and
generally and specifically for the reformation and rehabilitation of the probationer . . . .”
(§ 1203.1, subd. (j).) “A condition of probation 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.]” (People v. Lent (1975) 15 Cal.3d 481, 486
(Lent), abrogated by Prop. 8 on another ground as noted in People v. Wheeler (1992) 4
Cal.4th 284, 290-292.) “The [Lent] test is clearly in the conjunctive, that is, the three
factors must all be found to be present in order to invalidate a condition of probation.”
(People v. Balestra (1999) 76 Cal.App.4th 57, 65, fn. 3; see Lent, at p. 486, fn. 1.)
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       “ „[P]robation is a privilege and not a right, and . . . adult probationers, in
preference to incarceration, validly may consent to limitations upon their constitutional
rights . . . . [Citations.]‟ [Citation.]” (People v. Leon (2010) 181 Cal.App.4th 943, 948.)
But “[a] probation condition that imposes limitations on a person‟s constitutional rights
must closely tailor those limitations to the purpose of the condition to avoid being
invalidated as unconstitutionally overbroad.” (In re Sheena K. (2007) 40 Cal.4th 875,
890 (Sheena K.).)
       “[T]he underpinning of a vagueness challenge is the due process concept of „fair
warning.‟ [Citation.] The rule of fair warning consists of „the due process concepts of
preventing arbitrary law enforcement and providing adequate notice to potential
offenders‟ [citation], protections that are „embodied in the due process clauses of the
federal and California Constitutions. [Citations.]‟ ” (Sheena K., supra, 40 Cal.4th at
p. 890.) “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. [Citation.]” (Ibid.)
       In Barajas, this court concluded that the word “ „adjacent‟ ” in a probation
condition prohibiting the defendant from being “ „adjacent to any school campus during
school hours‟ ” rendered the condition impermissibly vague. (Barajas, supra, 198
Cal.App.4th at p. 760.) “At a sufficient distance, most reasonable people would agree
that items are no longer adjacent,” the court explained, “but where to draw the line in the
continuum from adjacent to distant is subject to the interpretation of every individual
probation officer charged with interpreting th[e] condition.” (Id. at p. 761.) “To avoid
inviting arbitrary enforcement and to provide fair warning of what locations should be
avoided,” the court ordered the condition modified to replace “ „adjacent to‟ ” with “ „on or
within 50 feet‟ ” of any school campus. (Ibid.)
       We confront a similar issue here, because “away from” is a relative concept. A
person standing across the street from a school is “away from” it, but so is a person who
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is five blocks or five miles distant. The condition must be modified to give defendant fair
notice of how far “away” from schools he must remain. The Attorney General suggests
that 150 feet is appropriate to protect the community, given defendant‟s conviction for
carrying a loaded gun with which he allegedly planned to “take out” Norteño gang
dropouts on sight. Defendant does not propose a shorter distance. That notwithstanding,
we believe the trial court is in the better position to determine just how far away from
public schools this particular defendant must remain. We will remand the case to permit
the trial court to make that determination and modify the condition accordingly.
       Defendant contends that the stay-away condition remains vague even with a
proximity descriptor, because the meaning of “school” is unclear. Is he prohibited, he
asks, from being a certain distance from a school building, or from the entire school
campus?
       The condition in Barajas enjoined the defendant from being “on or within 50 feet
of any school campus during school hours . . . .” (Barajas, supra, 198 Cal.App. 4th 748,
763, italics added.) We are not convinced, however, that “public school campus” is
significantly clearer than “public school.” Here again, the trial court is in the better
position to clarify the scope of the condition it imposed. The court may want to make the
perimeter of the school grounds the relevant reference point. Alternatively, it may want
to order defendant to remain a certain distance away from any school building. It may
want to establish some other reference point. We will instruct the trial court, on remand,
to clarify the scope of its prohibition.
       We reject defendant‟s contention that the stay-away condition is unreasonably
overbroad. “[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.)
The condition the trial court imposed here was expressly designed “to protect the
community” and to “try to do something to get people like this young defendant away
                                              5
from the gangs.” Defendant was arrested in front of a middle school, armed and
allegedly looking to “take out” Norteño gang dropouts on sight. The condition ordering
him to stay away from any public school aims to protect that segment of the public that
his crimes suggested might be most at risk. We reject the contention that it does so at the
expense of defendant‟s rehabilitation. Contrary to his assertion, the stay-away condition
does not “ban him from areas where he must be in order to further his rehabilitation.” By
its plain terms, it allows defendant to be present as “a registered student” of a school, and
it also permits his presence on a school campus if his probation officer determines, in
advance, that there is a legitimate need for such an accommodation.


                                  B. Curfew Condition
       Condition No. 16 requires defendant “not to be out of your home between
8:00 p.m. and 5:00 a.m. without prior approval of the Probation Officer.” He complains
that the condition is overbroad. His crimes did not occur during those hours, he argues,
and it is unreasonable to require an adult to obtain advance approval “every time he
might be outside his home past 8:00 p.m.” He suggests that a 10:00 p.m. curfew would
be more appropriate. We disagree.
       The curfew condition satisfies the Lent test. (Lent, supra, 15 Cal.3d at p. 486.)
First, it is related to defendant‟s crimes—street terrorism and carrying a loaded firearm in
a public place. The probation report highlighted jail booking records noting that
defendant admitted being a Norteño gang member and listed Sureños and gang dropouts
as his “enemies.” He was allegedly looking for Norteño gang dropouts when he was
arrested, having been ordered to shoot them on sight. The trial court could reasonably
have concluded from these facts that he posed a significant danger to the community that
warranted significant limitations on his right to be outside, especially at night. The court
expressly so concluded, as evidenced by its response when defendant protested that he
did not understand why he could not be out later. “The reason you can‟t be out later,” the
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court explained, “is because you‟re a gang member and people -- citizens in this
community have a right to be free from people like you, especially after dark, when
you‟re out there wearing your hooded sweat shirt and carrying loaded guns around.”
       The curfew is also reasonably related to defendant‟s future criminality. (Lent,
supra, 15 Cal.3d at p. 486.) As the trial court made clear, “[t]he Court has looked very
carefully at the defendant‟s history in this matter and his contacts with gang members,
and it‟s very clear to the court that the defendant is very involved in a criminal street
gang in Monterey County. Monterey County has a very significant criminal street gang
problem. . . . These gangs create problems for each other. They kill each other. They
hunt each other, and they torture each other. . . . They cause no end of disturbance within
neighborhoods, within residences, and within families. . . . The Court considers these
conditions necessary to try to do something to not only protect the community that are
law abiding citizens but also . . . to get people like this young defendant away from the
gangs. There are few things that the Court can do. . . . [The conditions imposed] are one
of the few things that the Court has to try to impact young defendants and keep them out
of prison; keep them from continuing this type of terror in our community.”
       Defendant argues that a 10:00 p.m. curfew would be more appropriate. We
disagree. The fact that he was arrested at 6:00 p.m. does not mean the trial court abused
its discretion in imposing the 8:00 p.m. curfew, since there is no reason to believe that a
gang member seeking to make his mark by killing gang dropouts on sight would confine
his activities to the daylight hours. The court could reasonably have concluded that such
a person could be more dangerous after dark, when he could more easily avoid detection.
       We are not persuaded that the condition is overbroad simply because defendant
was, at 18, legally an adult when the trial court imposed the curfew. “[P]robationary
proscriptions against gang-related conduct are equally proper when imposed upon adult
offenders . . . .” (People v. Lopez (1998) 66 Cal.App.4th 615, 625-626 [affirming broad
gang condition imposed upon a defendant “in his early twenties” as an “essential
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element” of his rehabilitation].) The curfew serves a rehabilitative purpose here.
Defendant told the court that he wanted to get a job and enroll in college upon his release
from custody. He acknowledged the difficulty of staying away from gang life but
offered, “I‟ll give it a try.” The 8:00 p.m. curfew aids his rehabilitation in at least two
ways—by making it easier for him to avoid situations that might tempt him to engage in
gang activities and by making it easier for his probation officer to monitor his
whereabouts and, ultimately, his compliance with the gang-related conditions of his
probation.
       Defendant argues that it is “unreasonable” to require him to obtain advance
approval “every time he might be outside his home past 8:00 p.m.” The condition is not
so restrictive as he contends. It does not preclude the probation officer from granting
defendant categorical permission to be outside after 8:00 p.m. for a specific purpose, such
as attending an evening class.
       We conclude that the curfew condition (Condition No. 16) requires no
modification.


                           C. Gang-Gathering Area Condition
       Condition No. 17 requires defendant “not to visit or remain in any area you know
or have reason to know or are told by the probation officer to be a gang gathering area.
The terms „gang‟ in these conditions refers to a criminal street gang as defined in . . .
Penal Code section 186.22.” Defendant claims the condition is unconstitutionally vague
because “gang-gathering area” is not defined. We disagree.
       In Barajas, this court concluded that a probation condition requiring the defendant
“ „not to visit or remain in any specific location which you know to be or which the
probation officer informs you to be an area of criminal street gang activity‟ ” was not
impermissibly vague. (Barajas, supra, 198 Cal.App.4th at pp. 754, 760.) The court
reasoned that “[t]he knowledge condition suffices to give defendant fair warning of what
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areas to avoid and ensures that he will not be found in violation due to a factual mistake,
accident, or misfortune.” (Id. at p. 760.) The same reasoning applies here, where the
condition defendant challenges includes a knowledge requirement that gives him fair
warning and protects him from arbitrary enforcement.
       But what if he “stops to talk to a gang member who is sitting on a bench,”
defendant asks. “[D]oes this become a „gang-gathering area?‟ ”
       “ „A probation condition which either forbids or requires the doing of an act in
terms so vague that persons of common intelligence must necessarily guess at its
meaning and differ as to its application, violates due process.‟ [Citation.]” (People v.
Moore (2012) 211 Cal.App.4th 1179, 1184.) But the fact that a defendant or his counsel
can posit a hypothetical about the application of a probation condition does not mean the
condition is unconstitutionally vague. Probation conditions need not be stated so
exactingly as to preclude any possibility of misinterpretation or misapplication. (Barajas,
supra, 198 Cal.App.4th at p. 762.) The law requires “ „ “ „reasonable specificity,‟ ” ‟ ” not
“ „ “mathematical certainty.” ‟ ” (Ibid.) “ „In deciding the adequacy of any notice afforded
those bound by a legal restriction, we are guided by the principle[] that “abstract legal
commands must be applied in a specific context.” ‟ ” (Ibid.)
       In the context of this case, defendant‟s park bench hypothetical is unpersuasive.
The record establishes that the trial court “very carefully” considered defendant‟s history
and his gang contacts. It was “very clear” to the court that defendant was “very involved
in a criminal street gang in Monterey County” and that his “life [wa]s very involved with
the gang culture here.” “He knows what those gang gathering areas are,” the court
concluded. “He knows what residences those are. He knows what locations those are.
They are not a secret. They are not a secret to him. They are not a secret to the probation
department. They are not a secret to law enforcement.”
       On similar facts, the court in In re Michael D. (1989) 214 Cal.App.3d 1610
rejected a vagueness challenge to a probation condition requiring that the minor not “ „be
                                              9
present in any known gang gathering area.‟ ” (Id. at p. 1616.) The minor in that case
“was a self-confessed member of the Middleside gang in Santa Ana.” (Ibid.) He had
been a member of the gang for five years, “had been involved in fights as a result of his
gang affiliation,” and considered the gang members “ „his brothers.‟ ” (Id. at pp. 1616-
1617.) “Given the facts of this case,” the court concluded, “requiring minor to stay out of
known „gang-gathering areas‟ is neither unreasonably vague nor unconstitutional.” (Id.
at p. 1617; see also In re Ramon M. (2009) 178 Cal.App.4th 665, 678 [“In cases
involving gang members and associates, courts have readily upheld prohibitions on the
probationer‟s presence in gang gathering areas against challenges that such conditions
were vague, overbroad, and otherwise unconstitutional.”].)
       We conclude that the gang-gathering area condition (Condition No. 17) requires
no modification.


                              D. No New Tattoos Condition
       Condition No. 22 requires defendant to “not obtain any new tattooing [or] change
or add to any existing tattooing upon your person. Permit photographing of any tattoos
you do have.” He complains that the condition is unconstitutionally overbroad because it
applies to all tattoos, not merely gang-related ones, thus violating his constitutional free
speech rights. The condition is also unreasonably overbroad, defendant maintains,
because the prohibition against changing any existing tattoo would prevent him from
removing a gang tattoo, “which is not at all reasonably related to the state‟s interest [in]
deterring criminal behavior . . . .” We cannot agree.
       In In re Antonio C. (2000) 83 Cal.App.4th 1029 (Antonio C.), the Fifth District
Court of Appeal upheld a probation condition barring a 15-year-old from obtaining any
new tattoos, reasoning that since minors are prohibited from obtaining permanent tattoos




                                              10
with or without parental consent (§ 6532), the challenged condition was analogous to the
condition requiring him to obey all laws. (Antonio C., at p. 1035.) “Moreover,” the court
held, “the condition is sufficiently related to his rehabilitation, and is a reasonable
exercise of the juvenile court‟s supervisory function to provide for his safety and
protection.” (Ibid.) The court rejected the minor‟s argument that the condition infringed
on his constitutional right to free speech: “Assuming, without deciding, that tattoos and
related skin markings constitute speech under the First Amendment [citation], the
probation condition does not unduly burden Antonio‟s free speech rights. The United
States Supreme Court has long held that while nonverbal expressive activity cannot be
banned because of the ideas it expresses, it can be banned because of the action it entails.
For example, burning a flag in violation of an ordinance against outdoor fires may be
punished, whereas burning a flag in violation of an ordinance against dishonoring a flag
may not. [Citation.] Here, the probation condition, which is content neutral, temporarily
prohibits Antonio from self-expression through permanent skin disfigurement. Its focus
is the manner in which the message is conveyed, not the message itself. As such, it
constitutes a reasonable manner restriction on Antonio‟s free speech rights.” (Antonio C.,
at p. 1035.)
       In In re Victor L. (2010) 182 Cal.App.4th 902 (Victor L.), the First District Court
of Appeal upheld a probation condition prohibiting an 18-year-old from obtaining any
new tattoos, noting that the language of the challenged condition was almost identical to
the language of the condition the Antonio C. court had approved. (Id. at p. 908.) “We are
reluctant to hold unconstitutional language which was specifically prescribed by another
Court of Appeal,” the court stated. (Victor L., at p. 928.)




2
        Section 653 provides in pertinent part that “[e]very person who tattoos or offers to
tattoo a person under the age of 18 years is guilty of a misdemeanor.”

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       The court rejected an age-related argument similar to the argument defendant
makes here. “The gist of Victor‟s argument appears to be that tattoo conditions of
probation become unenforceable after the probationer reaches age 18 because California
law does not prohibit the tattooing of a person over 18. [Citation.] But he
overemphasizes the role of the penal law in this context. We agree with the constitutional
analysis of Antonio C. . . . , and conclude that the prohibition on acquiring tattoos while
on juvenile probation is a proper condition for gang members or those at risk of
becoming gang members, regardless of their age, so long as they remain under the
juvenile court‟s jurisdiction.” (Victor L., supra, 182 Cal.App.4th at p. 928.)
       Observing that “[j]ust because it is lawful for an 18 year old to get a tattoo does
not mean it is wise,” the court refused to modify the condition by limiting its prohibition
to the acquisition of new tattoos “ „with gang significance.‟ ” (Victor L., supra, 182
Cal.App.4th at pp. 929-930.) It did so for two reasons. First, “[t]attoos are . . .
commonly worn by gang members to show gang affiliation. [Citations.] Whether tattoos
are gang related or not, a heavily tattooed appearance tends to give rise to prejudices or
suspicions about the tattooed person—warranted or not—that could interfere with a
ward‟s future aspirations, such as employment opportunities. Thus, the prohibition on
tattoos tends to steer wards away from gang appearance, gang identity, and the social
stigma sometimes attached to tattoos.” (Ibid.)
       Second, “gang tattoos may employ obscure symbols not readily recognized or
catalogued as gang tattoos. [Citation.] Thus, a complete ban on new tattoos enhances the
enforceability of the condition.” (Victor L., supra, 182 Cal.App.4th at pp. 929-930.)
Because these factors made the tattoo ban part of a program of reform and rehabilitation,
the total ban on new tattoos “for the remainder of Victor‟s probationary period [wa]s not
overbroad.” (Id. at p. 930.)
       We find the reasoning of Antonio C. and Victor L. persuasive. Although defendant
is not a minor, we believe a content-neutral prohibition on acquiring new tattoos while on
                                              12
probation is a proper condition for adult gang members so long as they remain on
probation under the superior court‟s jurisdiction. Accordingly, we conclude that the no
new tattoos condition (Condition No. 22) requires no modification.


                                    III. Disposition
      The order of probation is reversed. On remand, the trial court is directed to
modify the stay-away condition (Condition No. 13) to clarify how far away defendant
must remain from a relevant reference point or points.




                                         ___________________________
                                         Mihara, J.



WE CONCUR:




_____________________________
Premo, Acting P. J.




_____________________________
Grover, J.




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