Filed 8/21/14 P. v. Morones CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                          SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H039945
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SSC130100A)

     v.
CHRISTOPHER JAMES MORONES,

         Defendant and Appellant.


         Pursuant to a negotiated disposition, Christopher James Morones (appellant)
pleaded no contest to one count of inflicting corporal injury on a cohabitant or former
cohabitant. (Pen. Code, § 273.5, subd. (a).)
         On July 9, 2013, the court suspended imposition of sentence and admitted
appellant to probation on various terms and conditions, two of which are the subject of
this appeal. Appellant filed a timely notice of appeal on July 24, 2013.
                                         Facts and Proceedings Below1
         On the morning of January 21, 2013, Jane Doe, the mother of appellant's autistic
child, called the police. She told the police that appellant had come to her residence the
previous evening; he wanted to resume their relationship. When Doe refused, appellant
pushed her onto the couch; then, he punched her twice on the right side of her face. Doe
told the police that she had dated appellant for approximately six years and that they had
a child together. The police searched for appellant but were unable to locate him.



1
       Since appellant resolved this case by entering a plea we take the facts from the
probation officer's report, but summarize them. The facts are not in dispute.
       Subsequently, on April 8, 2013, the police located appellant; he was looking
through the front window of a home. A police officer suspected that appellant was
planning a burglary. The officer stopped appellant. Appellant was carrying a plastic bag
that contained several beers. The officer pat-searched appellant because he was wearing
"voluminous clothing"; the officer saw that appellant had his left hand clenched in a fist,
which he would not release. As a result, appellant was detained and placed in handcuffs.
Later the officer determined that appellant possessed a small plastic bindle of
methamphetamine located inside his left glove. Appellant claimed that the
methamphetamine was not his. He said that someone threatened him that they would
" 'jump his ass,' " if he did not take the drugs and deliver them to "his cousin." Appellant
described the person that threatened him as a "gangster" with a tattoo of a " 'Huelga Bird,'
a known tattoo associated with the Norteno criminal street gang . . . ."
       At appellant's sentencing hearing, defense counsel objected to probation condition
Nos. 9, 10, and 11, which contained references to alcohol, on the ground that there was
no nexus to the underlying crime; and to condition Nos. 24 through 27 on the ground that
there was no nexus between gang activity and appellant's offenses. Relevant to this
appeal, the court imposed the following conditions, which are designated condition Nos.
24 and 26 in the probation officer's report:
       "You are not to have access to, use, or possess any police scanner device or
surveillance equipment on your person, vehicle, place of residence, or personal effects."
       "You are not to own [sic] any new tattooing on your person while on probation
supervision. And you shall permit photographing of any tattoos on your person by law
enforcement."2



2
      As written in the probation officer's report this condition reads, "Do not obtain any
new tattooing upon your person while on probation supervision. You shall permit
photographing of any tattoos on your person by law enforcement."
                                               2
          The court struck condition No. 9, which had stated that appellant was to "Totally
abstain from the use of alcoholic beverages, not purchase or possess alcoholic beverages,
and stay out of places where you know alcohol is the main item of sale." In addition, the
court struck any reference to alcohol in condition Nos. 10 and 11.3
          Appellant contends that condition Nos. 24 and 26 are so vague and overbroad as to
render them unconstitutional. Appellant requests that we strike or modify the conditions.
In addition, appellant asserts that the sentencing minutes contain an error that must be
corrected, because the minute order mistakenly includes condition No. 9, which the court
struck.
                                          Discussion
Possession of Surveillance Equipment
          Appellant contends that condition No. 24, which requires that he not have access
to, or use, or possess any police scanner device or surveillance equipment, is
unconstitutionally vague. We disagree.
          "A probation condition 'must be sufficiently precise for the probationer to know
what is required of him [or her], and for the court to determine whether the condition has
been violated,' if it is to withstand a [constitutional] challenge on the ground of
vagueness. [Citation.]" (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
3
       Condition No. 10 as written in the probation officer's report reads as follows: "Not
use or possess alcohol, intoxicants, or controlled substances without the prescription of a
physician; not traffic in, or associate with persons you know, or have reason to know,
use, or traffic in controlled substances." Condition No. 11 reads as follows: "Submit to
and complete any field sobriety test or alcohol/narcotics testing of your blood, breath, or
urine at the request of any probation officer or law enforcement officer." A line appears
through the word alcohol in both conditions.
                                               3
federal and California Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const., art. I,
§ 7).' [Citation.] The vagueness doctrine bars enforcement of ' "a statute which either
forbids or requires the doing of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its application.' [Citations.]"
[Citation.] A vague law 'not only fails to provide adequate notice to those who must
observe its strictures, but also "impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the
attendant dangers of arbitrary and discriminatory application." [Citation.]' [Citation.] In
deciding the adequacy of any notice afforded those bound by a legal restriction, we are
guided by the principles that 'abstract legal commands must be applied in a specific
context,' and that, although not admitting of 'mathematical certainty,' the language used
must have ' "reasonable specificity." ' [Citation.]" (Sheena K., supra, 40 Cal.4th at
p. 890.)
       Appellant argues that there is no agreed upon meaning with respect to the term
"surveillance equipment" and as such the term is vague. He contends that an objective
reader of the condition could reasonably find it to include anything from a pair of opera
glasses to a home security system. Thus, he could violate the condition if he were found
with a pair of binoculars, a digital camera or video camera, a smart phone with an audio
recording application, or even a " 'nanny cam' " used to monitor a sleeping baby.
       We agree with appellant that all the aforementioned things could be considered
surveillance equipment. However, that does not make the term "surveillance equipment"
void for vagueness. Surveillance equipment is sufficiently identifiable (as appellant has
just demonstrated) as to not require appellant to guess at the probation condition's
meaning. In other words, the term "surveillance equipment" may be all encompassing,
but that does not make the term vague.
       Nevertheless, the probation condition in this case involves use of, access to, and
possession of specific items of property that are otherwise legal and for which there exist
                                              4
no statutes proscribing their possession.4 Thus, to the extent that it restricts ownership
and possession of property, the condition impacts the constitutional right to possess
property. (Cal. Const., art. I, § 1; see People v. Freitas (2009) 179 Cal.App.4th 747,
751.) "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. [Citation.]" (Sheena K., supra, 40 Cal.4th at
p. 890.)
       Moreover, even if appellant knows which items are off-limits to him, the
requirement that he not have access to them must include knowledge.
       In multiple cases, probation conditions have been invalidated where they failed to
include language requiring the probationer's knowing violation of the condition. (People
v. Garcia (1993) 19 Cal.App.4th 97, 102; People v. Leon (2010) 181 Cal.App.4th 943,
949-950 (Leon); People v. Freitas, supra, 179 Cal.App.4th at pp. 751-752; People v.
Moses (2011) 199 Cal.App.4th 374, 377.)
       Here, the probation condition prohibiting access to, use of, or possession of police
scanners or surveillance equipment—similar to the probation conditions in the many
cases cited ante that courts have found to be infirm—has no express requirement that
appellant have knowledge of the presence of such equipment. Thus, as the condition is
worded, appellant's unknowing access to a police scanner or surveillance equipment
could constitute a probation violation. Similar to probation conditions that prohibit
possession of gang paraphernalia without an express knowledge requirement (Leon,
supra, 181 Cal.App.4th at p. 951; In re Vincent G. (2008) 162 Cal.App.4th 245), the
prohibition against having access to or possessing police scanners or surveillance

4
       We acknowledge, however, that there is at least one statute that criminalizes a
specific use of a police scanner. (See Pen. Code, § 636.5 [making it a misdemeanor for
an unauthorized person to intercept any public safety radio service communication, by
use of a scanner or any other means to assist the perpetrator of a crime in committing the
offense or evading law enforcement].)
                                              5
equipment without inclusion of an element that appellant knowingly do so is
constitutionally infirm. (Sheena K., supra, 40 Cal.4th at p. 891.) Therefore, to avoid any
overbreadth in condition No. 24 we will modify the condition to read: You are not to
knowingly have access to, use, or possess any police scanner device or surveillance
equipment that you intend to use to monitor the police, whether on your person, in your
vehicle, at your place of residence, or among your personal effects.
New Tattoos
       As noted, condition No. 26 requires that appellant not obtain any new tattoos
while he is on probation. Appellant contends that the condition is unconstitutionally
overbroad because it applies to all tattoos, not merely gang-related ones, thus violating
his constitutional free speech rights.5 He argues that the condition is not narrowly
tailored to prohibit only gang-related tattoos because it prevents him from getting any
kind of tattoo while on probation including "his son's name, a religious figure such as the
Virgin Mary, or a political statement such as 'End NSA snooping.' "
       "In granting probation, courts have broad discretion to impose conditions to foster
rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.
[Citations.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.) Reasonable
probation conditions may infringe upon constitutional rights provided they are narrowly
tailored to achieve those legitimate purposes. (People v. Olguin (2008) 45 Cal.4th 375,
384 (Olguin); Sheena K., supra, 40 Cal.4th at p. 890.) "[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 . . . ." (Olguin, supra, at p. 384.)
       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. The court reasoned that since minors are prohibited from obtaining

5
      Appellant concedes for the sake of argument that the governmental interest
underlying the condition is to limit criminal activity by gangs.
                                               6
permanent tattoos with or without parental consent (Pen. Code, § 653),6 the challenged
condition was analogous to the condition requiring him to obey all laws. (Antonio C.,
supra, at p. 1035.) The court explained, "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. The court stated,
"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." (Ibid.)
       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.) That court
stated that it was "reluctant to hold unconstitutional language which was specifically
prescribed by another Court of Appeal." (Id. at p. 928.)
       Appellant attempts to distinguish Antonio C. and Victor L. on the ground that both
cases involved juveniles. The court rejected an age-related argument in Victor L.

6
       Penal Code 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."
                                              7
"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.)
       The Victor L. court observed, "[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.) The court 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.)
Since 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—particularly the
observation in Victor L. that gang tattoos may employ obscure symbols not readily
recognized or catalogued as gang tattoos. Having dealt with numerous gang-related cases
                                              8
over the years, we observe that in this court's experience the significance of tattoos can
change over time, making something as innocuous as the tattoo of a religious figure or
the logo of a sports team into something more sinister if adopted by a particular gang as
one of their symbols.
       Although appellant is not a minor, we believe a content-neutral prohibition on
acquiring new tattoos is a proper condition for adult gang members7 while on probation
under the superior court's jurisdiction. "Inherent in the very nature of probation is that
probationers 'do not enjoy "the absolute liberty to which every citizen is entitled." '
[Citations.]" (U.S. v. Knights (2001) 534 U.S. 112, 119.) Accordingly, we conclude that
the ban on appellant's acquiring new tattoos (condition No. 24) requires no modification.
Correction of the Minute Order from the Sentencing Hearing
       As noted ante, at the sentencing hearing the court did not orally impose condition
No. 9. However, the minute order from the sentencing hearing includes condition No. 9.
Appellant requests that the minute order be brought into conformity with the court's oral
pronouncement.
       It has long been held that where there is a discrepancy between the oral
pronouncement of judgment and the minute order, the oral pronouncement controls.
(People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Mitchell (2001) 26 Cal.4th 181,
185 (Mitchell).) On the other hand, a record that is in conflict will be harmonized if
possible. (People v. Smith (1983) 33 Cal.3d 596, 599 (Smith); People v. Harrison (2005)
35 Cal.4th 208, 226.) If it cannot be harmonized, whether one portion of the record


7
       According to the probation officer's report, appellant identified himself as an
active member of the Norteño criminal street gang when he was booked into the
Monterey County jail on April 8, 2013. He was housed in "K" Pod at the jail, a
dormitory populated exclusively by Norteño criminal street gang members or their
associates. Appellant's tattoos include "VGN," which stands for Varios Greenfield Norte,
"674," four dots on his left elbow, and one dot on his right elbow. Most of appellant's
friends are involved in criminal street gangs.
                                              9
should prevail as against contrary statements in another portion of the record will depend
on the circumstances of each particular case. (Smith, supra, at p. 599.)
       In this case, there is no indication that Judge Iglesia intended the signed minute
order to modify his in-court recitation of the probation conditions he wished to impose in
this case. In light of his pronouncement that "Paragraph 9 is deleted" we give more
credence to the oral pronouncement of judgment; we deem the discrepancy in the
sentencing minutes to be the result of clerical error. (Mitchell, supra, 26 Cal.4th at
p. 185.) Accordingly, we will send this case back to the trial court to correct the court
minutes.
                                        Disposition
       Probation condition No. 24 is modified to read, "You are not to knowingly have
access to, use, or possess any police scanner device or surveillance equipment that you
intend to use to monitor the police, whether on your person, in your vehicle, at your place
of residence, or among your personal effects." The case is remanded to the trial court to
correct the sentencing minutes with respect to condition No. 9. As modified, the
judgment is affirmed.




                                             10
                                  _________________________________
                                  ELIA, J.


WE CONCUR:




_______________________________
PREMO, Acting P. J.




_______________________________
MIHARA, J.
