Filed 10/25/13 P. v. Garcia CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                          H038578
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. F1140758)

         v.

PHILIP MICHAEL GARCIA,

         Defendant and Appellant.


         Defendant Philip Michael Garcia appeals from the trial court‟s order modifying
his probation conditions. He argues that the modification exceeded the court‟s
jurisdiction because it was based on the same facts as the original probation order. He
argues alternatively that the court must modify its minute order to conform to its oral
pronouncement, and that the added “stay away from school campuses” condition is
unconstitutionally vague and overbroad.
         For the reasons explained below, we will uphold the trial court‟s jurisdiction to
modify Garcia‟s probation conditions. We conclude, however, that the “stay away from
school campuses” condition is impermissibly vague, and we will modify the condition to
specify a 50 foot distance consistent with the parties‟ agreement on appeal.
                                               I. BACKGROUND
         On November 19, 2011, defendant was arrested during a traffic stop in Gilroy for
carrying a concealed firearm in a vehicle (Pen. Code, § 12025, subd. (a)(1)), possessing a
firearm as a misdemeanant (Pen. Code, § 12021, subd. (c)(1)), and giving a false name to
a peace officer (Pen. Code, § 148.9). According to the police report, the arresting officer
noted Garcia‟s tattoos during the booking process, at which time Garcia admitted to
associating with a Norteño street gang in San Jose.
       Garcia entered no contest pleas to the concealed weapon and false information
charges. On January 30, 2012 he was placed on three years formal probation, and was
ordered to serve six months in county jail. The court imposed several probation
conditions which did not include gang-related proscriptions.
       Garcia reported to the probation department one week after he was released from
jail. His cell phone and car were searched at that time. According to the probation
officer‟s memorandum recommending modifications to Garcia‟s probation conditions,
the cell phone contained gang-related photos, including a red “N” indicating Norteño
gang affiliation. His phone also contained a video of two men punching another man,
and a video of a badly injured man with a bloody face. Garcia‟s phone password, which
Garcia claimed not to know, was a swipe pattern of the letter “N.” Garcia told the
probation officer that he did not take the photos or videos, that they were sent to him in
November 2011, that he had not engaged in gang activity since his release from jail, and
that he no longer wanted to associate with gang members or participate in gang activities.
       Based on the examination of Garcia‟s cell phone, and in light of his concealed
firearm offense, the probation officer recommended that Garcia‟s probation conditions be
modified to include gang conditions and drug testing orders.1 The probation officer
explained that he sought the additional conditions to better supervise Garcia and protect
the community.
       On July 12, 2012, at a probation modification hearing attended by Garcia and his
counsel, the court granted the probation department‟s modification request. Garcia

       1
          The drug testing order was based on intoxicants found during the probation
officer‟s search of Garcia‟s car. The testing order is not challenged on appeal.
argued that the proposed conditions should not be added because not only was Garcia
doing well on probation, the probation department had not shown that Garcia was
presently associating with gang members, or violating the law or his current probation
conditions. The court disagreed, noting that Garcia‟s cell phone provided evidence of
gang activity and that the additional conditions were appropriate to assure Garcia would
dissociate himself from the gang and to facilitate the probation department doing its job.
The court read the new gang conditions into the record at the hearing, and entered a
minute order which included an abbreviated form version of the conditions that had been
pronounced on the record.
       Garcia filed a timely notice of appeal.
                                     II. DISCUSSION

A.     THE TRIAL COURT HAD JURISDICTION TO MODIFY GARCIA’S PROBATION
       Penal Code section 1203.3, subdivision (a), authorizes a court to revoke or modify
its probation orders “at any time during the term of probation . . . .” In People v. Cookson
(1991) 54 Cal.3d 1091, 1098, our Supreme Court held that a trial court does not need to
wait for a probationer to violate probation before it may modify the probation conditions.
This rule is consistent with the flexibility needed to achieve the rehabilitative goals of
probation. (Ibid.) However, because an order modifying probation conditions requires a
factual basis, it cannot be based on the same facts supporting the original order granting
probation. (In re Clark (1959) 51 Cal.2d 838, 840.) Thus, “[a] change in circumstance is
required before a court has jurisdiction to extend or otherwise modify probation.”
(Cookson, supra, 54 Cal.3d at p. 1095.) A change in circumstance may be found in a fact
not available at the time of the original order. (Ibid.)
       Garcia argues the trial court lacked jurisdiction to modify his probation conditions
because no change in circumstances occurred between the initial imposition of conditions
in January 2012 and the modification hearing in July 2012. According to Garcia, the
court modified his probation conditions based on his affiliation with the Norteño gang - a
fact that was known or available to the court at Garcia‟s initial sentencing through the
arresting officer‟s report that was part of the court file.2 We review this issue de novo
because when facts are not in dispute, the effect or legal significance of those facts is a
question of law. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799).
       While the trial court may have had knowledge in January 2012 that Garcia was
affiliated with the Norteño gang, it did not base its modification on the police report
already in the court file. Rather, the court was presented with new facts at the
modification hearing not available at the original sentencing. They included images,
some violent, from Garcia‟s cell phone, further demonstrating his association with the
Norteño gang. Even if Garcia renounced his gang association to the probation officer, the
images were recent and disturbing and clearly provided a legal basis for imposing the
new gang terms. (People v. Lent (1975) 15 Cal.3d 481, 486, superceded by Proposition 8
on another ground as noted in People v. Wheeler (1992) 4 Cal.4th 284, 290–292 [“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.]”.].)
       We conclude that the trial court had jurisdiction to modify Garcia‟s probation
conditions based on new information obtained from the probation officer‟s search of
Garcia‟s cell phone.




       2
         On September 18, 2012, we granted Garcia‟s motion to augment the record with
the police report in this case, obtained from the Superior Court file. The stamp on the
report indicates that it was released to the court on November 20, 2011.
B.     THE COURT’S ORAL PRONOUNCEMENT OF PROBATION CONDITIONS
       CONTROLS OVER THE LESS DETAILED MINUTE ORDER
       Garcia contends that the “Gang Orders” conditions set forth in a form attachment
to the July 12 minute order are unconstitutionally vague and overbroad, and therefore
must be modified to conform with the court‟s more detailed oral pronouncement of gang
conditions. It is well established that the court‟s oral pronouncement of a sentence
controls over the clerk‟s minute order. (People v. Farell (2002) 28 Cal.4th 381, 384, fn.
2.) Thus, by operation of law, the clerk‟s minute order does not control here, and we
need not examine it for constitutional infirmity. The court‟s oral pronouncement itself is
a valid order. (People v. Wilshire Ins. Co. (1977) 67 Cal.App.3d 521, 535.) However,
because we will modify the “stay away from school campuses” condition as discussed
below, we will direct the superior court to conform the July 12 minute order to reflect
both our modification and the trial court‟s oral pronouncement of its “Gang Orders.”
C.     THE “STAY AWAY FROM SCHOOL CAMPUSES” CONDITION IS VAGUE
       Garcia argues that the gang condition prohibiting him from being “adjacent to”
any school campus during school hours unless enrolled or with permission of school
officials or the probation department is both vague and overbroad. Although Garcia did
not object to the challenged condition in the trial court, his contention is cognizable on
appeal because it raises a constitutional challenge involving a question of law that
requires no reference to the sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875,
887–889.) We review such challenges de novo. (In re Shaun R. (2010) 188 Cal.App.4th
1129, 1143.)
       Garcia relies on People v. Barajas (2011) 198 Cal.App.4th 748, 761, where this
court concluded that the phrase “adjacent to” in a nearly identical probation condition
rendered the condition impermissibly vague. “At a sufficient distance, most reasonable
people would agree that items are no longer adjacent, 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 enforcing th[e] condition.” (Ibid.) “To avoid inviting
arbitrary enforcement and to provide fair warning of what locations should be avoided,”
Barajas accepted the Attorney General‟s proposal that the probation condition be
modified to replace “adjacent to” with “on or within 50 feet” of any school campus. (Id.,
at pp. 761–762.)
       In accordance with Barajas, we conclude that the phrase “adjacent to” renders the
probation condition impermissibly vague.3 We emphasize that Barajas specifically
refuted any intention that 50 feet be a constitutional threshold. (Barajas, supra, 198
Cal.App.4th at p. 761, fn. 10). Nevertheless, because both parties accept the 50 foot
distance applied in Barajas, we will adopt the same modification here and conserve the
judicial resources which would otherwise be expended in modifying the condition on
remand. The trial court is in the better position to address any fact-based aspects of
specifying a stay away distance, and it retains the ability to do so as it deems necessary
under Penal Code section 1203.3.
                                   III. DISPOSITION
       The school stay away condition is modified to state: “You are not to be on or
within 50 feet of any school campus during school hours, unless you are enrolled or have
prior permission of the school administration or probation.” As modified, the challenged
order adding probation conditions is affirmed. The superior court is directed to amend
the July 12, 2012 minute order to conform the language of the “Gang Orders” to the trial
court‟s oral pronouncement, as modified here.




       3
         We reject Garcia‟s argument that the condition is overbroad. Barajas did not
hold that a similarly phrased condition was overbroad; other than citing Barajas, Garcia
presents no argument demonstrating overbreadth.
                               ____________________________________
                               Grover, J.




WE CONCUR:




____________________________
Premo, Acting P.J.




____________________________
Mihara, J.
