Filed 8/7/13 P. v. Pantoja-Ramirez CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A135989
v.
DANIEL PANTOJA-RAMIREZ,                                              (Solano County
                                                                     Super. Ct. No. FCR291587)
         Defendant and Appellant.


         Daniel Pantoja-Ramirez appeals from a judgment upon a jury verdict finding him
guilty of permitting another to shoot a firearm from a vehicle, and obstructing or delaying
a peace officer (Pen. Code, §§26100, subd. (b); 148, subd. (a)(1)). On appeal, defendant
challenges the gang conditions of his probation. We modify the gang conditions, and
otherwise affirm the judgment.
                                                      I. FACTS
         On March 11, 2012 at approximately 9:30 p.m., Officer Kevin Carella was on
patrol on Mankas between Abernathy and Rancho Solano Parkway in Fairfield. He heard
several gunshots and saw muzzle flashes coming from defendant’s vehicle at Abernathy
and Mankas. Defendant’s car made a U-turn and then was facing eastbound in Carella’s
direction. It stopped for about 15 to 20 seconds; Carella heard five to six more gunshots.
Defendant drove his car toward Carella and passed Carella’s vehicle. Carella followed
defendant’s car and radioed for assistance. Once other police cars were behind Carella’s
car, Carella effected a traffic stop. Defendant, however, did not immediately stop but
traveled approximately 400 to 500 feet, and slowed to a stop or almost a complete stop.


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A passenger in the car got out, threw a black bag over a residential fence, hopped the
fence and took off running. Carella stopped to pursue the passenger while a backup unit
pursued defendant.
       Officer Shackford activated his siren and pursued defendant’s car for about half a
mile before defendant pulled over. When Shackford approached the car, he saw a spent
casing on the back passenger floorboard and the handle of a baseball bat. In a search of
the car, he found a Raiders’ beanie containing six live bullets inside the center console
and a wooden claw hammer under the driver’s seat. The police also found spent casings
in the area where Carella had observed that shots were fired. The expended bullet casing
found in defendant’s car matched the casings found at the scene of the shooting.
       Defendant testified that on the evening of March 11, 2012, he was driving his
friend, Juan, to his house. They decided to go to the Tower Market first. On the way,
Juan pulled out a gun and started shooting out of the car. Defendant did not know that
Juan had a gun and became angry. He decided to take Juan back to where he had picked
him up and made a U-turn. Defendant testified that he then saw that he was being
pursued by the police and when he slowed down, Juan jumped out of the car. Defendant
did not know Juan’s last name.
                                     II. DISCUSSION
       Defendant contends that the trial court abused its discretion in imposing gang
terms as a condition of probation. He argues that the evidence fails to show that he was
currently a gang member or that the crime was related to gang activity.
       The Attorney General asserts that defendant forfeited his challenge to the gang
conditions because he failed to object in the trial court.1 The failure to object to a
condition of probation below waives any error on appeal. (People v. Welch (1993) 5
Cal.4th 228, 234–235 (Welch); People v. Gardineer (2000) 79 Cal.App.4th 148, 151–

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 The Attorney General also argues that defendant invited any error because he asked the
sentencing court to follow the probation officer’s recommendation of probation, and
acknowledged that he needed to disengage from individuals that have gang associations.
We agree that it appears that defendant invited the error, but consider the issue in light of
defendant’s claim on appeal that he objected to the gang conditions.

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152.) “A timely objection allows the court to modify or delete an allegedly unreasonable
condition or to explain why it is necessary in the particular case.” (Welch, supra, 5
Cal.4th at p. 235.) Defendant argues that his defense counsel objected to the gang
conditions by arguing that defendant was not a gang member. The record refutes this
claim.
         When read in context, defense counsel’s argument was not that defendant objected
to the gang conditions, but rather that he was an appropriate candidate for probation.
Indeed, defendant asked the court to follow the probation officer’s recommendation of
probation on conditions including the gang terms. Defense counsel argued that defendant
“acknowledges that he needs to make significant lifestyle changes, [including] being free
of alcohol and drugs and disengaging from these individuals that have criminal and gang
associations.” While defendant forfeited the claim by failing to object to the gang
conditions when they were imposed, we consider the issue in order to obviate any claim
that trial counsel was ineffective for failing to object.
         We review the trial court’s imposition of conditions of probation for abuse of
discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379.) “Generally, ‘[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.]” (Ibid., quoting People v. Lent (1975) 15 Cal.3d 481, 486.)
         Here, there is substantial evidence in the record to support imposition of gang
conditions. The probation officer’s report indicates that defendant was an admitted
Sureño gang member of the Calle San Marco set as a juvenile. In addition, he suffered
violations of probation for associating with known gang members when he was a
juvenile. Further, his defense counsel acknowledged that although he had no information
that defendant was currently a gang member, defendant had “associates” that were gang




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members and had brothers who were affiliated with a gang.2 More importantly,
defendant acknowledged that he needed to disengage from individuals that had gang
associations.
        The gang conditions were also permissible as they were reasonably related to
preventing future criminality. (People v. Lent, supra, 15 Cal.3d at p. 486.) In People v.
Lopez (1998) 66 Cal.App.4th 615, 625–626 (Lopez), the court, in affirming imposition of
gang terms on an adult first time offender convicted of a crime that was not gang related,
recognized that association with gang members is the first step to involvement in gang
activity.
        Defendant argues that Lopez is distinguishable because there the defendant
admitted being a gang member. (Lopez, supra, 66 Cal.App.4th at p. 622.) Yet the Lopez
court stressed that whether a defendant was a current gang member was not “critical.”
(Id. at p. 624.) The defendant in Lopez, like defendant here, was in his early twenties
with a juvenile court history, though the present conviction was his first adult felony.
Hence, like Lopez, even if the current offense was not in some manner gang related,
given defendant’s age, his past affiliation with a gang, and his current gang associates,
the trial court was warranted in concluding that gang conditions were necessary as “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.” (Id. at p.
626.)
        Finally, defendant contends that even if the gang conditions are reasonable, four of
the terms must be modified because they lack a knowledge requirement and are therefore
unconstitutionally overbroad and vague. The Attorney General does not oppose the
proposed modifications.
        In Lopez, supra, 66 Cal.App.4th at pp. 627–629, the court held that a probation
condition prohibiting the defendant from wearing gang clothing or displaying gang
insignia was unconstitutionally overbroad because it did not provide that the clothing and

2
  The probation report also indicated that defendant’s three older brothers were involved
in gang activity.

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insignia must be known to the defendant to be gang related. The court modified the
condition to add the element of knowledge. (Id. at p. 638.) Recently, the court in People
v. Patel (2011) 196 Cal.App.4th 956, 960–961, modified a probation condition to include
a knowledge requirement, but noted that it would no longer entertain the issue since it
was a repetitive appellate issue which resulted in a drain on judicial resources. (Id. at
p. 960.) Instead, the Patel court held that it would in the future “construe every probation
condition proscribing a probationer’s presence, possession, association, or similar action
to require the action be undertaken knowingly. It will no longer be necessary to seek a
modification of a probation order that fails to expressly include such a scienter
requirement.” (Id. at pp. 960–961.)
       Although we too recognize the problem of repeatedly entertaining the scienter
issue in probation condition orders, we shall adhere to the practice of modifying
probation conditions to add an express knowledge requirement.
                                   III. DISPOSITION
       The following probation conditions are modified to read as follows: “Defendant is
prohibited from wearing any gang associated clothing, emblems, or insignia known to
him to be associated with any gang. Defendant is prohibited from possessing any gang-
related paraphernalia known by him to be related to gangs, including, but not limited to
gang graffiti, symbols, photographs, members rosters, or other gang writings or
publications. Defendant is prohibited from acquiring any tattoos, permanent or
temporary, and/or any gang-related burns or marks known to him to be gang related.
Defendant is prohibited from being present at any court proceeding known to him to




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involve gang members to which he is not a party or a subpoenaed witness.” In all other
respects, the judgment is affirmed.




                                               _________________________
                                               Rivera, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Humes, J.




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