Majority
Opinion
Defendant Mario Gabriel appeals from judgments of conviction entered after he pleaded guilty to various charges and allegations in two
I. Statement of Facts
II. Discussion
A. Case No. SS091125A
In April 2009, two police officers saw defendant approach a van while holding his front waistband and making confrontational gestures. The officers suspected that defendant was armed based on his behavior and body language. When they attempted to detain defendant, he fled. During the ensuing chase, the officers saw defendant throw a gtm. The officers eventually apprehended defendant and recovered the gun. Defendant admitted that he was known as a Parkside Norteño from Huron, California.
B. Case No. SS091848A
In August 2009, police officers stopped a vehicle that had been speeding. Defendant was the driver of the vehicle and his passenger was Mario Guzman, a Norteño gang member. Though defendant claimed that he had never been arrested in Salinas, a records check informed the officers that defendant had been arrested and was out on bail with conditions to obey all laws and not associate with any gang members. Defendant then apologized and acknowledged that he had violated a court order.
D
efendant contends that the written gang conditions should be modified to reflect the conditions orally imposed by the trial court.
In case No. SS091125A, the trial court suspended imposition of sentence and imposed probation for three years. The trial court imposed various conditions of probation, including that defendant “[n]ot be present at any known gang gathering area” and “[n]ot associate with individuals you know
1 In case No. SS091125A, defendant pleaded guilty to having a concealed firearm on his person (Pen. Code, § 12025, subd. (a)(2)) and admitted the special allegations that he was not the registered owner of the firearm (Pen. Code, § 12025, subd. (b)(6)), and that the commission of the offense was for the benefit of, or at the direction of, or in association with a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). In case No. SS091848A, defendant pleaded guilty to a misdemeanor charge of disobeying a court order regarding conditions of bail (Pen. Code, § 166).
When there is a discrepancy between the minute order and the oral pronouncement of judgment, the oral pronouncement controls. (People v. Farell (2002) 28 Cal.4th 381 , 384, fn. 2 [ 121 Cal.Rptr.2d 603 , 48 P.3d 1155 ].) Thus, the written gang conditions in case No. SS091125A must be modified to reflect the conditions orally imposed by the court.
In case No. SS091848A, the trial court imposed “the same terms and conditions as outlined on items—pages 18 and 19.” These conditions required defendant, among other things, to “[n]ot associate with any individuals you know or suspect to be gang members, drugs users, or on any form of probation or parole supervision.” Thus, the oral pronouncement is accurately reflected in the minute order. However, defendant argues that “inclusion of the word ‘suspect’ exposes [him] to criminal punishment for associating with individuals he may never know to be gang members,” which renders the condition unconstitutionally vague.
“[Probation is a privilege and not a right, and . . . adult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights .... [Citations.]” (People v. Olguin (2008) 45 Cal.4th 375 , 384 [ 87 Cal.Rptr.3d 199 , 198 P.3d 1 ].) However, “[a] probation condition ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.]” (In re Sheena K. (2007) 40 Cal.4th 875 , 890 [ 55 Cal.Rptr.3d 716 , 153 P.3d 282 ].)
To “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 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. Accordingly, this condition must also be modified to delete the word “suspect.”
III. Disposition
Bamattre-Manoukian, Acting P. J., and Duffy, J., concurred.
Cases cited
- People v. Farell 28 Cal.4th 381 at 384 p. 1073
- People v. Olguin 45 Cal.4th 375 at 384 p. 1073
- People v. Sheena K. 40 Cal.4th 875 at 890 p. 1073