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People v. Leon

February 2, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOSEPH RUDY LEON, DEFENDANT AND APPELLANT.



(Santa Clara County Super. Ct. No. CC829979).

The opinion of the court was delivered by: Bamattre-Manoukian, Acting P.J.

CERTIFIED FOR PUBLICATION

I. INTRODUCTION

As part of a negotiated plea agreement, defendant Joseph Rudy Leon pleaded no contest to possession for sale of cocaine (Health & Saf. Code, § 11351), and admitted a criminal street gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(a)). Defendant also pleaded no contest to possession for sale of methamphetamine (Health & Saf. Code, § 11378), and possession for sale of marijuana (Health & Saf. Code, § 11359). Defendant was placed on three years formal probation subject to various terms and conditions, including eight months in county jail, as well as gang-related conditions.

On appeal, defendant contends that various conditions of his probation violate his constitutional rights. He argues that the condition of probation prohibiting him from associating with gang members violates his federal due process rights because it is unconstitutionally vague. He argues that the condition of probation prohibiting him from possessing gang paraphernalia violates his federal due process rights because it is vague and overbroad. He also contends that the condition of probation prohibiting him from frequenting areas of gang-related activity is unconstitutionally vague. Finally, defendant argues that the condition of probation prohibiting him from appearing at any court proceeding unless he is a party or subpoenaed witness is an unconstitutional impingement on his First Amendment guarantee of access to court proceedings.

For reasons that we will explain, we determine that most of defendant's contentions have merit. Therefore, we will modify various conditions of defendant's probation and affirm the judgment as so modified.

II. FACTUAL AND PROCEDURAL BACKGROUND

As defendant was convicted by plea, the summary of his offenses is taken from the probation report.

Around midnight on December 29, 2008, San Jose police officers went to defendant's residence to check on a possible domestic violence victim. While on their way, the officers received information that defendant may have a handgun. The suspected victim, 19-year-old Angela Raquel Rosas, was on juvenile probation, with a search/seizure clause and gang conditions. When the officers arrived at the residence, they immediately took defendant into custody. The officers asked defendant's father if Rosas was at the residence. He told them that she was upstairs in a bedroom.

As the officers entered the bedroom, they saw a large red flag with a Huelga bird hanging on the wall above the bed. The officers also noticed a strong marijuana odor in the bedroom closet. Inside the closet were several small plastic baggies. Next to Rosas were several plastic baggies, several folded stacks of money totaling several hundred dollars, a "pay/owe" notebook, a scale with white powder residue, a calculator, money orders, money order stubs, and plastic baggies containing marijuana, cocaine, and methamphetamine. Defendant also had messages on his cell phone regarding narcotics sales and a small baggie containing cocaine in his left sock.

Defendant and Rosas were charged by felony complaint filed December 31, 2008, with possession for sale of cocaine (Health and Saf. Code, § 11351; count 1), possession for sale of methamphetamine (Health and Saf. Code, § 11378; count 2), and possession for sale of marijuana (Health and Saf. Code, § 11359; count 3). Thereafter, defendant entered into a negotiated plea agreement, allowing him to avoid serving time in prison in exchange for pleading no contest to the charges and admitting a criminal street gang enhancement as to count 1. (Pen. Code, § 186.22, subd. (b)(1)(a).) On January 30, 2009, defendant pleaded no contest to possession for sale of cocaine (Health & Saf. Code, § 11351), and admitted the gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(a)). Defendant also pleaded no contest to possession for sale of methamphetamine (Health & Saf. Code, § 11378), and possession for sale of marijuana (Health & Saf. Code, § 11359). On motion of the prosecutor, Rosas's charges were dismissed based on insufficient evidence and defendant's pleas and admissions.

On March 24, 2009, the court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including an eight-month jail term. The court also ordered: "No insignia, tattoos, emblem, button, badge, cap, hat, scarf, bandanna, jacket, or other article of clothing which is evidence of affiliation with or membership in a gang. No association with gang members. You're not to frequent any areas of gang-related activity. You shall not be adjacent to any school campus during school hours unless you're enrolled or with prior permission of the school administration or probation. You shall not appear at any court proceeding unless you're a party, you're a defendant in a criminal action, subpoenaed as a witness, or with permission of probation. All these orders are as directed and supervised by probation."

III. DISCUSSION

Defendant challenges various gang conditions of probation as unconstitutional. He contends that the condition prohibiting him from associating with gang members violates his federal due process rights because it is unconstitutionally vague. He argues that the condition prohibiting him from possessing gang paraphernalia violates his federal due process rights because it is vague and overbroad. He also argues that the condition prohibiting him from frequenting areas of gang- related activity is unconstitutionally vague. Finally, defendant argues that the condition of probation prohibiting him from appearing at any ...


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