Filed 4/19/13 P. v. Silva 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                          H038146
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SSC110091)

         v.

CHRISTOPHER JOSEPH SILVA,

         Defendant and Appellant.



         Defendant Christopher Joseph Silva pleaded guilty to possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a)) pursuant to a plea agreement.
Following defendant‟s completion of a residential drug treatment program, the trial court
suspended imposition of sentence and placed defendant on probation for three years. On
appeal, defendant contends that the trial court erred by imposing gang-related probation
conditions. We conclude that some of the probation conditions must be modified. As
modified, the order is affirmed.


                                   I. Procedural and Factual Background
         In April 2011, defendant was a passenger in a car that was stopped for a traffic
violation in King City. At that time, defendant was on probation for receiving stolen
property (Pen. Code, § 496, subd. (a)), driving under the influence of alcohol or drugs
(Veh. Code, § 23152, subd. (b)), and driving with a suspended license (Veh. Code,
§ 14601.5, subd. (a)). After defendant was arrested for an unspecified violation of
probation, he told the officer that he had a small bindle of methamphetamine in his sock.
       In May 2011, defendant was charged with transportation of methamphetamine
(Health & Saf. Code, § 11379, subd. (a)). In October 2011, the complaint was amended
to add a count of possession of methamphetamine (Health & Saf. Code, § 11377,
subd. (a)). Defendant then pleaded guilty to possession of methamphetamine in exchange
for a promise of probation, dismissal of the original charge, and consideration for
treatment under the provisions of Proposition 36.
       About a week later, defendant was found ineligible for Proposition 36, but eligible
for drug treatment court. In November 2011, defendant was accepted into a drug
treatment program, and to remain in custody until a place was available for him in a
residential facility. Gang-related probation conditions which had been previously
imposed as a condition of “OR” release were continued.
       Defendant successfully completed the Sun Street Residential Program and
complied with the terms of drug treatment court.
       In April 2012, the trial court suspended imposition of sentence and placed
defendant on probation for three years. Over a defense objection, the trial court imposed
several gang-related probation conditions.


                                        II. Discussion
       Defendant contends that the gang-related probation conditions must be stricken
because they require or forbid conduct that is not reasonably related to future criminality.
       The probation report recommended imposition of gang-related probation
conditions. The basis for this recommendation was as follows: “The defendant has
claimed to not associate with any gang. However, Salinas Police Report #09-040326

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noted his association with an individual who had gang-related tattoos and who admitted
to being a Norteno from King City. When the defendant was booked into the Monterey
County Jail, he was classified as a Norteno and placed in the active Norteno pod.”
       At the sentencing hearing, defense counsel objected to the imposition of gang-
related probation conditions. He first noted that the drug treatment court had determined
that defendant was not an active gang member. He also acknowledged that though the
police report in 2009 referred to gang involvement, defendant ultimately pleaded guilty in
that case to misdemeanor possession of stolen property with no gang allegations. He
argued that defendant‟s association with a Norteno gang member when he was arrested
did not imply that he was a gang member. He further argued that gang-related probation
conditions were unnecessary because the drug treatment court would terminate him from
the program if it thought he was participating in any gang activity.
       The prosecutor argued that defendant‟s tattoos indicated gang association, he was
placed in a Norteno pod in jail, his girlfriend was on probation with “full gang terms,”
and the court had previously imposed gang-related conditions when it released defendant
on his own recognizance.
       Defense counsel responded that defendant had broken up with his girlfriend and
had not been involved with her since he had been in drug treatment court. He also noted
that defendant‟s tattoos were his last name and the letter “K,” and neither were gang
tattoos.
       The trial court noted that there had been a gang issue in one of defendant‟s prior
cases when defendant wore red in court and to the drug treatment program. The trial
court then imposed gang-related conditions Nos. 18, 19, 21, and 22 as requested by the
probation officer. These conditions state: (18) “Not be present in any [area you] know,




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suspect or are told by the Probation [Officer] to be [a] gang-gathering area,”1 (19) “Not
associate with any individuals you know or are told by the Probation Officer to be gang
members . . . ,” (21) “Not possess, wear, use or display any item you know, suspect, or
have been told by the Probation Officer to be associated with membership or affiliation in
a gang, including, but not limited to, any insignia, emblem, button, badge, cap, hat, scarf,
bandanna, or any article of clothing, hand sign, or paraphernalia to include the color
red/blue,” and (22) “Do not obtain any new gang related tattooing upon your person
while on probation supervision. Defendant shall permit photographing of any tattoos on
person by law enforcement.”
       “We review conditions of probation for abuse of discretion. [Citations.]
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.]‟ [Citation.] This test is conjunctive—all
three prongs must be satisfied before a reviewing court will invalidate a probation term.
[Citations.] As such, even if a condition of probation has no relationship to the crime of
which a defendant was convicted and involves conduct that is not itself criminal, the
condition is valid as long as the condition is reasonably related to preventing future
criminality. [Citation.]” (People v. Olguin (2008) 45 Cal.4th 375, 379-380.)
       Defendant argues that “there is an insufficient nexus between the prohibited
conduct and the goal of deterring criminal conduct.”
       In People v. Brandao (2012) 210 Cal.App.4th 568, this court recently considered
whether a no-gang-contact probation condition was “reasonably related to a risk that
defendant will reoffend.” (Id. at p. 574.) This court held that the trial court erred by
1
        The bracketed portions of this condition are from the probation officer‟s
recommendation as to this condition. It appears that the omissions from the minute order
as to these parts of the order are typographical errors.
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imposing the challenged condition, because “the record divulge[d] (1) no ties between
defendant and any criminal street gang, (2) no such ties involving any member of
defendant‟s family, and (3) no criminal history showing or strongly suggesting a gang
tie.” (Id. at p. 576.)
       Unlike in Brandao, here, there were ties between defendant and a criminal street
gang. Defendant had previously engaged in criminal activity with a Norteno gang
member and he was housed in the active Norteno pod in jail. He had also been involved
recently with a woman who was subject to gang-related probation conditions. Moreover,
as the trial court commented, there had been a gang issue in one of defendant‟s prior
cases when he wore red in court and to the drug treatment program. Thus, the gang-
related probation conditions were reasonably related to a risk that defendant would
reoffend.
       Defendant also contends, and the Attorney General concedes, that the word
“suspect” in probation conditions Nos. 18, 19, 20, and 21 is unconstitutionally vague.2
We agree.
       As this court explained in People v. Gabriel (2010) 189 Cal.App.4th 1070
(Gabriel), “[t]o „suspect‟ is „to imagine (one) to be guilty or culpable on slight evidence
or without proof‟ or „to imagine to exist or be true, likely, or probable.‟ (Merriam-
Webster‟s Collegiate Dict. (10th ed.1999) p. 1187 (Webster’s).) To „imagine‟ is „to form
a notion of without sufficient basis.‟ (Webster’s, at p. 578.) Given this lack of
specificity, the word „suspect‟ fails to provide defendant with adequate notice of what is
expected of him when he lacks actual knowledge that a person is a gang member, drug


2
        There is some ambiguity as to probation condition No. 19. As set forth in the
probation report, it contains the verb “suspect.” However, as described in the minute
order, it does not. At the sentencing hearing, the trial court referred to “19.” For the sake
of clarity, we include defendant‟s challenge to the condition as stated in the probation
report.
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user, or on probation or parole. Moreover, inclusion of this word renders the condition
insufficiently precise for a court to determine whether a violation has occurred.”
(Gabriel, at p. 1073.)
       Condition No. 19 is identical to the probation condition at issue in Gabriel, and
thus it must be modified. The same rationale applies to probation condition Nos. 18, 20,
and 21. Thus, each of these probation conditions must be modified to delete the word
“suspect.”


                                      III.   Disposition
       The following probation conditions are modified to read: (18) “Not be present in
any area you know or are told by the Probation Officer to be a gang-gathering area,”
(19) “Not associate with any individuals you know or are told by the Probation Officer to
be gang members . . . ,” (20) “Not remain in any vehicle either as a passenger or driver
which you know to be stolen or to contain any firearms or illegal weapon,” and (21) “Not
possess, wear, use or display any item you know or have been told by the Probation
Officer to be associated with membership or affiliation in a gang, including, but not
limited to, any insignia, emblem, button, badge, cap, hat, scarf, bandanna, or any article
of clothing, hand sign, or paraphernalia to include the color red/blue.” As modified, the
order is affirmed.




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                                 _______________________________
                                 Mihara, J.



WE CONCUR:




______________________________
Premo, Acting P. J.




______________________________
Grover, J.




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