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LEXIS 4617

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Service: Get by LEXSEE Citation: 2011 Cal. App. Unpub. LEXIS 4617

2011 Cal. App. Unpub. LEXIS 4617, * THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO JOSE LOPEZ, Defendant and Appellant. E050967 COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION TWO 2011 Cal. App. Unpub. LEXIS 4617

June 21, 2011, Filed NOTICE: NOT TO BE PUBLISHED IN OFFICIAL REPORTS.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 PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115. PRIOR HISTORY: [*1] APPEAL from the Superior Court of San Bernardino County. Super.Ct.No. FSB900364. Donna G. Garza, Judge. DISPOSITION: Reversed with directions. CORE TERMS: gang, probation, criminal street gang, display, myspace, probation officer, garage, registration, affiliation, membership, gang-related, insignia, emblem, gang activity, custody, yeska, bpg, probation revocation hearing, conditions of probation, revocation of probation, probationer, revoked, indicia, revoke, attire, dress, abuse of discretion, paraphernalia, registered, displaying

COUNSEL: Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Randall Einhorn, and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent. JUDGES: McKinster, J.; Ramirez, P.J., King, J. concurred. OPINION BY: McKinster OPINION

Francisco Jos Lopez appeals an order revoking and terminating his probation and sentencing him to

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three years in state prison. He contends that there was insufficient evidence to support the finding that he was in violation of one of the two conditions of probation on which the termination was based, and that it would have been an abuse of discretion to revoke his probation based solely on the remaining violation. We will reverse and remand for further proceedings. PROCEDURAL HISTORY On April 23, 2009, defendant pleaded guilty to one count of assault by means likely to cause great bodily injury. (Pen. Code, 245, subd. (a)(1).) 1 On June 23, 2009, the court granted three years supervised [*2] probation. FOOTNOTES
1

All statutory citations refer to the Penal Code.

On February 9, 2010, a petition for revocation of probation and remand was filed, alleging that defendant had violated the following terms and conditions of his probation: 11. Not associate with persons known to defendant to be convicted felons or anyone actively engaged in criminal activity; 13. Not associate with persons known to defendant to be gang members or frequent places of known gang activity; 21. Register defendant's address with the appropriate city of county law-enforcement agency, pursuant to section 186.30/section 186.31 within 10 days from release from custody, and submit proof of current registration to the probation officer within 30 days of release from custody; 2 FOOTNOTES Section 186.30 requires a person who has been convicted of a gang-related crime to register with the police or sheriff of the city or county of his or her residence within 10 days after release from custody or arrival within the city or county.
2

24. Not wear, display or have in defendant's possession any item associated with gang dress or any items prohibited by the probation officer, including but not limited to any insignia, emblem, button, badge, cap, [*3] hat, scarf, bandanna, or any article of clothing, hand sign or paraphernalia associated with membership or affiliation in any gang. After an evidentiary hearing, the court found that defendant had violated his probation as to conditions 21 and 24. 3 It revoked and terminated probation and sentenced defendant to the middle term of three years in state prison. FOOTNOTES Both the minutes and the reporter's transcript refer to condition 25 rather than condition 24. It is clear that the court intended to refer to condition 24.
3

Defendant filed a timely notice of appeal. FACTS On February 5, 2010, probation officer Roger Fansler did a compliance check at defendant's residence

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of record. Defendant lived in a small house with his mother and other family members. Fansler had his partner search the detached garage. Fansler's partner advised him that a person who identified himself as Joshua Mendoza was sleeping in the garage, which had been converted into a residence and was occupied by defendant's female cousin. His cousin was dating Mendoza. Fansler knew Mendoza to be a member of the Brown Pride Gang. Next to the area where Mendoza was sleeping, Fansler's partner found what appeared to be a Brown Pride Gang [*4] roster with a list of monikers. Defendant was a self-identified member of the Brown Pride Gang. The name "Yeska," which was defendant's moniker, was listed on the paper. No gang paraphernalia or gang-related clothing or materials were found inside the main house, and there was no evidence that defendant knew of Mendoza's presence in the garage. Nevertheless, Fansler arrested defendant. He later reviewed defendant's probation file and discovered that the probation office had no record that defendant had submitted proof that he had registered with law enforcement as required by the terms and conditions of his probation. A fellow gang team probation officer told Fansler that defendant had in the past maintained several accounts on MySpace.com. He ran a search under defendant's moniker, Yeska, and discovered three MySpace pages. Two had not been accessed recently. The third, with the URL www.myspace.com/yeskax13, had last been accessed on February 5, 2010, the day defendant was arrested. The first page of the site appears to identify the site's owner as "yeska bpg INLAND EMPIREX3." Elsewhere, there was a photograph of defendant in typical gang attire, with other young men similarly attired. [*5] There was a second photograph of defendant, also wearing typical gang attire, captioned "yeska vbpgx3IE." There was also a display of the "BPG" logo. Defendant had registered with the San Bernardino Police Department on November 5, 2009. The police department did not have a policy of providing a copy of the registration to the registrant, nor did it have a policy of reporting the registration to the probation department. The trial court found that defendant was not in violation of conditions 11 and 13 by virtue of Mendoza's presence in the garage, which was a separate residence. It found him in violation of condition 21 for failing to provide proof of registration to the probation department and in violation of condition 24 based on the MySpace page and "other documentation" which indicated that defendant was "possibly still . . . a member and displaying information that he is still part [of] BPG." LEGAL ANALYSIS 1. THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW TO ESTABLISH THAT DEFENDANT VIOLATED CONDITION 24 Section 1203.2, subdivision (a) authorizes a trial court to revoke probation if the interests of justice so require and the court, in its judgment, has reason to believe that the [*6] person has violated any of the conditions of his or her probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 440-441.) The applicable standard of proof is a preponderance of the evidence. (Id. at p. 447.) In general, we review a trial court's finding of a violation of probation for substantial evidence. (People v. Kurey (2001) 88 Cal.App.4th 840, 848.) Under that standard of review, we must uphold the trial court's ruling if any rational trier of fact could have found the violation by a preponderance of the evidence. (People v. Tompkins (2010) 185 Cal.App.4th 1253, 1260-1261 [Fourth Dist., Div. Two].) We presume in support of the judgment every fact the trier of fact could reasonably deduce from the evidence. (People v. Alexander (2010) 49 Cal.4th 846, 917.) As we will discuss, however, the dispositive issue in this case is whether the evidence was sufficient as a matter of law to support a finding that defendant possessed or displayed indicia of membership in a criminal street gang. That is a question of law, which we review de novo. (People v. Villalobos (2006) 145 Cal.App.4th 310, 316, fn. 3 [Fourth Dist., Div. Two].) As noted above, condition 24 prohibited defendant from wearing, [*7] displaying or possessing any

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item associated with gang dress or any items prohibited by the probation officer, including but not limited to any insignia, emblem, button, badge, cap, hat, scarf, bandanna, or any article of clothing, hand sign or paraphernalia associated with membership or affiliation in any gang. Defendant raises a number of contentions as to why he could not validly have been found in violation of condition 24. We agree with two of his contentions and, accordingly, need not address the rest. First, we agree with defendant that the violation of condition 24 must be based solely on the MySpace page and not on the "other documentation" the trial court referred to. The only other document admitted into evidence was the roll sheet found in the garage, adjacent to the cot where Mendoza was lying. The trial court found that the garage was a separate residence and not under defendant's dominion and control. Consequently, defendant cannot be responsible for any display of the BPG logo on that sheet of paper, nor could he be deemed to possess it. We also agree with defendant that, assuming that the MySpace page constituted a display of gang attire or an insignia or emblem associated [*8] with membership or affiliation in any gang, there was insufficient evidence that defendant violated that condition. The word "gang" has both benign and sinister implications; it does not necessarily connote a criminal organization. (People v. Lopez (1998) 66 Cal.App.4th 615, 631.) In order to be valid, a condition of probation must be reasonably calculated to rehabilitate the probationer by deterring him from engaging in future illegal conduct. (Id. at p. 632.) A condition which restricts the probationer's right of lawful association does not serve that purpose. Accordingly, both to avoid an unconstitutional restriction on the right of free association and to provide the probationer with constitutionally adequate notice of conduct which is prohibited, a term or condition of probation which prohibits association with gang members or prohibits gang-related dress or displays of gang emblems, insignia or other representations of gang affiliation must be limited to association or representations of affiliation with criminal street gangs, as defined in section 186.22. 4 (Id. at pp. 632-634; accord, People v. Leon (2010) 181 Cal.App.4th 943, 951.) FOOTNOTES Section 186.22, subdivision (f) provides, [*9] "As used in this chapter, 'criminal street gang' means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." Subdivision (e) defines "pattern of criminal gang activity" as the "commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following [enumerated] offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons . . . ."
4

Here, defendant's underlying conviction did not include a gang enhancement allegation which, if found true, would have established that Brown Pride Gang is a criminal street [*10] gang, and Fansler's testimony was insufficient to support a finding that Brown Pride Gang qualifies as a criminal street gang. Fansler testified that, according to information he had received from his office's expert with respect to Brown Pride Gang, Brown Pride Gang is an organization of more than two members, that its members "perform criminal activities as a primary basis of the gang," that it had specific colors or symbols depicting the gang, that it was located in the Adelanto area and was primarily Hispanic. He did not, however, testify to facts establishing a pattern of criminal gang activity, as required by section 186.22, subdivisions (e) and (f). In the absence of substantial evidence that Brown Pride Gang is a criminal street gang within the meaning of section 186.22, the finding that defendant violated condition 24 by displaying indicia of association with Brown Pride Gang cannot be sustained. 5 FOOTNOTES

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We will assume that if defendant had committed the underlying offense in association with other members of Brown Pride Gang, it would have been a valid condition of his probation that he not associate with Brown Pride Gang members or display indicia of his membership even if Brown [*11] Pride Gang did not meet the criteria of section 186.22, because prohibiting his association with Brown Pride Gang would serve a rehabilitative purpose. There is no evidence that he did commit his crime in association with Brown Pride Gang members, however, and the gang-related conditions of his probation are not limited to association with Brown Pride Gang.
5

2. REMAND IS NECESSARY FOR RECONSIDERATION OF REVOCATION OF DEFENDANT'S PROBATION BASED SOLELY ON THE VIOLATION OF CONDITION 21 Defendant contends that it would be an abuse of discretion to revoke his probation based solely on his failure to inform his probation officer that he had registered with the police after his release from custody in violation of condition 21 of the terms and conditions of his probation. He contends that we should either reverse the order of revocation as an abuse of discretion or remand the matter to the trial court in order to allow the court to reconsider its exercise of discretion in light of our ruling that there is insufficient evidence to prove that defendant violated condition 24 of his probation. A trial court has broad discretion to determine that a probation violation requires revocation of probation. [*12] (People v. Rodriguez, supra, 51 Cal.3d at p. 443.) However, when the court revoked probation based on two violations, one of which is determined on appeal to be invalid, it may be appropriate to remand the matter to the trial court so that it can exercise its discretion based solely on the remaining violation. For example, in People v. Hayko (1970) 7 Cal.App.3d 604, the defendant's probation was revoked upon his conviction of a new offense, possession of marijuana. That conviction was reversed because the contraband was obtained through an illegal search and seizure. (Id. at pp. 606-609.) The appellate court held that the illegally seized evidence could be considered in determining whether the defendant had violated the terms of his probation, even though it was not admissible in a trial on the new offense. It remanded the matter for a new probation revocation hearing because it did not know whether the trial court "would have taken the same action regarding appellant, just on the basis of the contraband seized, if there had not been a trial and conviction." (Id. at pp. 610-611.) Here, although the trial court found defendant's failure to provide proof of registration to be a willful [*13] violation of a court order, we do not know the extent to which the court's view on the seriousness of the violation might have been colored by its finding that defendant also violated condition 24. Accordingly, we will reverse the judgment and remand the matter for a new probation revocation hearing at which the trial court may determine whether revocation of probation is appropriate based solely on the violation of condition 21. DISPOSITION The judgment is reversed and the cause is remanded to the trial court for a new probation revocation hearing based solely on the alleged violation of condition 21 of the terms and conditions of defendant's probation. /s/ McKinster J. We concur: /s/ Ramirez P.J. /s/ King

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