Filed 10/24/14 P. v. Fowler CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C075425

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F07676)

         v.

GLEN FOWLER,

                   Defendant and Appellant.




         Defendant Glen Fowler entered a negotiated no contest plea to possession of
marijuana for sale in exchange for probation and 120 days in county jail. The remaining
counts (possession of concentrated cannabis and misdemeanor driving without a license)
were dismissed in the interest of justice and in view of the plea. The trial court
suspended imposition of sentence and granted formal probation for a term of five years
subject to certain terms and conditions, including gang-related conditions.
         On appeal, defendant challenges the gang-related conditions as unconstitutionally
overbroad in that they are not supported by the evidence or reasonably related to
defendant’s crime or future criminality. We reject defendant’s contention.

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       Prior to defendant entering his plea, he was provided a list of proposed probation
conditions. Defense counsel objected to the proposed gang-related conditions as lacking
any nexus to defendant or his crimes, disputing that he admitted he was a gang member.1
Defendant agreed to enter his plea and to be sentenced immediately thereafter. After
defendant entered his plea, defense counsel renewed the objection to the gang-related
conditions.
       The prosecutor responded: “At the time the defendant was arrested, he was on
juvenile probation for selling cocaine and possession of a weapon. His probation
conditions were that he was not to associate with gang members and not to possess any
dangerous weapons. When he was arrested for this crime, he admitted he was a validated
29th Street Crip. His gang validation was confirmed.
       “Additionally, when the officers were investigating this case, they looked through
pictures -- through the pictures on the defendant’s cell phone and found over fifty
pictures of the defendant posing with large quantities of marijuana, cash.
       “Additionally, [there were] various pictures with the defendant posing while using
hands to make gang signals with cash and marijuana.
       “So I think that his gang activities involved the sale of marijuana. So there is a
nexus for these conditions.” (Italics added.)
       Defense counsel argued that the undated photos showed someone, but not
defendant, with guns and throwing gang signs. Defense counsel did not respond to the
prosecutor’s representation that defendant had been on juvenile probation with gang-
related conditions or that defendant had been validated as a gang member.




1 The proposed gang-related conditions provided: “7. Defendant shall not knowingly
associate with persons you know to be or whom probation informs you are gang
members; [¶] 8. Defendant shall not knowingly be in places frequented by persons
he/she knows to be or where probation tells him/her that gang members frequent[.]”

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       With respect to the gang-related conditions, the court stated that when referral to
probation has been waived, it would usually delete the gang-related conditions, but “in
this case there is enough on the record and enough of a nexus to impos[e] [the gang
conditions].”
       Defendant contends there is not any evidence of gang connections to support the
gang-related conditions, “only the argument of the prosecutor upon which the trial court
relied.”
       “Trial courts have broad discretion to set conditions of probation in order to ‘foster
rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.’
[Citations.] If it serves these dual purposes, a probation condition may impinge upon a
constitutional right otherwise enjoyed by the probationer, who is ‘not entitled to the same
degree of constitutional protection as other citizens.’ [Citation.]” (People v. Lopez
(1998) 66 Cal.App.4th 615, 624 (Lopez).)
       “The classic formulation of a trial court’s power to impose probation conditions is
taken from People v. Lent (1975) 15 Cal.3d 481, 486 . . . , where our Supreme Court
stated: ‘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. Balestra (1999)
76 Cal.App.4th 57, 65, fn. omitted.)
       Lopez did not find any abuse of discretion when the trial court imposed gang-
related conditions even though there was not any evidence the underlying offense was
gang related. (Lopez, supra, 66 Cal.App.4th at pp. 622-626.) The conditions prohibited
the defendant from being involved in a gang, associating with gang members, wearing or
possessing any item of gang clothing, or displaying markings of gang significance. (Id.
at p. 622.) “Because ‘[a]ssociation with gang members is the first step to involvement in
gang activity,’ such conditions have been found to be ‘reasonably designed to prevent

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future criminal behavior.’ [Citation.]” (Id. at p. 624.) Gang-related conditions also serve
a rehabilitative purpose, even where the underlying offense was not gang related. (Id. at
p. 625.) Supporting the imposition of gang-related conditions, the probation report
reflected that the defendant admitted membership in the Norteño gang, which had a
history of overt criminal behavior, and it listed the defendant’s lengthy history of juvenile
offenses and misdemeanor adult crimes. (Id. at p. 626.) Lopez held that the defendant’s
“age, gang affiliation, and consistent and increasing pattern of criminal behavior
warranted a conclusion by the trial court that [the defendant’s] disassociation from gang-
connected activities was 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.” (Ibid.)
       The rules for admissibility of evidence at trial do not govern at a sentencing
hearing. Hearsay is admissible at a sentencing hearing provided the hearing procedures
are not “fundamentally unfair.” (People v. Peterson (1973) 9 Cal.3d 717, 725-726; see
People v. Arbuckle (1978) 22 Cal.3d 749, 754-755 [reliability is “key issue in
determining fundamental fairness”].) Use of a probation report’s hearsay statements that
contain sufficient indicia of reliability does not violate due process. (People v. Otto
(2001) 26 Cal.4th 200, 210-211.)
       Here, even though a probation report was waived and defendant was immediately
sentenced, defendant knew of the proposed probation conditions, including the gang-
related conditions, before he entered his plea. Defense counsel objected to the gang-
related conditions, arguing that defendant disputed he had admitted to officers that he was
a gang member and challenging the photos as not depicting defendant throwing gang
signs. Defense counsel did not object on hearsay grounds to the prosecutor’s
representation that defendant had been on juvenile probation with gang-related conditions
when he was arrested for the current offense or that defendant had been validated as a
gang member. Defendant had the opportunity to and did contradict two of the

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prosecutor’s statements. Defendant could have contradicted the prosecutor’s two other
statements but did not. Thus, defendant has not shown any fundamental unfairness in the
procedure, and the trial court did not err in relying upon the prosecutor’s undisputed
statements. Sufficient evidence supported the gang-related conditions, which were
related to defendant’s future criminality.
                                      DISPOSITION
       The judgment is affirmed.



                                                           RAYE              , P. J.



We concur:



         BLEASE             , J.



         MAURO              , J.




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