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People v. Perez

August 4, 2009; as modified August 26, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ALEJANDRO MIGUEL PEREZ, DEFENDANT AND APPELLANT.



Kevin J. McGee, Judge Superior Court County of Ventura (Super. Ct. No. 2008001627) (Ventura County)

The opinion of the court was delivered by: Gilbert, P.J.

CERTIFIED FOR PUBLICATION

Alejandro Miguel Perez pleaded guilty to second degree robbery. (Pen. Code, § 211.) His appeal concerns a single condition of probation imposed at his sentencing hearing that prohibits him from attending any court hearing or being "within 500 feet of any Court in which [he] is neither a defendant nor under subpoena." Under the circumstances here, we conclude the probation condition is overbroad. We strike the probation condition and remand with instructions.

FACTS

Perez and his friends saw a young man named Luis near a store. Perez believed Luis was an El Rio gang member. Luis had just bought a pair of pants for $29. Perez and his friends confronted Luis and exchanged unfriendly words. Perez tackled Luis and "then forcibly took his pants to make a point."

Perez said that he believed that Luis and others had vandalized his brother's property. He took the pants in retaliation for what had happened to his brother, and he was "sorry for what he did to" Luis. Perez said some of his friends are Colonia Chiques gang members, but "he never joined their gang." He "tagged" for the La Colonia gang, however, and belonged to a graffiti "tagging crew called VC Tag."

After Perez pleaded guilty to second degree robbery, the trial court suspended imposition of sentence and placed him on 36 months of formal felony probation.

The probation report lists 36 probation terms and conditions. Probation condition 23 provides, "The defendant shall not attend any Court hearing or be within 500 feet of any Court in which the defendant is neither a defendant nor under subpoena. The defendant shall inform the probation officer prior to any Court appearance."

The prosecutor requested the court to impose all probation conditions listed in the probation report.

Perez's counsel moved the court to strike condition 23 as "an illegal term." The trial court denied the motion.

DISCUSSION

"In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety . . . ." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) "The trial court's discretion, although broad, nevertheless is not without limits." (Id. at p. 1121.) A probation condition that is unreasonable or overbroad will not be sustained. (Ibid.; In re John V. (1985) 167 Cal.App.3d 761, 770-771.) A condition that "forbids conduct which is not itself criminal" must be "reasonably related to the crime of which the defendant was convicted or to future criminality." (People v. Lent (1975) 15 Cal.3d 481, 486.)

Perez claims that a 500-foot restriction on access to courts is not reasonably related to his crime. His offense did not involve threatening witnesses or interfering with court proceedings. Because of Perez's affiliation with gangs, the Attorney General justifies the restriction to prevent future gang-related criminality.

A trial court may impose probation conditions to discourage defendants from engaging in gang-connected activities. (People v. Lopez (1998) 66 Cal.App.4th 615, 625-626.) Here there were a number of "gang" probation conditions: Perez may not associate with gang members, be near gang areas or activities, wear gang clothing, display ...


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