Trial Court: Santa Clara County Superior Court No.: C1071545 Trial Judge: The Honorable Philip H. Pennypacker (Santa Clara County Super. Ct. No. C1071545)
The opinion of the court was delivered by: Lucero, J.*fn12
CERTIFIED FOR PUBLICATION
Defendant Esequiel Barajas was identified as one of two men who attacked and seriously cut a third man with beer bottles on a San Jose street during the evening of March 9, 2010. Pursuant to a plea agreement, on November 9, 2010 defendant pleaded no contest to a charge of assault with a deadly weapon and admitted that he personally used a beer bottle as a dangerous and deadly weapon and he personally inflicted great bodily injury on the victim. (Pen. Code, §§ 245, subd. (a)(1), 667, 1192.7, 12022.7.) He also admitted violating probation in another case.*fn1 Pursuant to the agreement, he was released from custody on November 9 with credit for time served, and, at sentencing on December 9, 2010, imposition of sentence was suspended and defendant was placed on probation for three years subject to a number of conditions.
On appeal defendant challenges two of those probation conditions as unconstitutionally vague and overbroad, both prohibiting his presence in different areas, one "in any specific location which you know to be or which the probation officer informs you to be an area of criminal street gang-related activity" and the other "adjacent to any school campus." For the reasons stated below, we will affirm the judgment after modifying the latter condition as proposed by the Attorney General.
2. The Sentencing Hearing
Defendant waived a referral for a formal probation report. The written probation report recommended imposing five different gang probation conditions, numbered 13 through 17.
At sentencing, after the court imposed the first gang condition,*fn2 defense counsel objected to the imposition of any gang conditions as being unrelated to the instant charges. Noting that defendant was with validated gang members when he was arrested and that defendant was subject to gang conditions in his prior case, the court overruled the objection and proceeded to impose the following conditions.*fn3
" You're not to associate with any person you know to be or the probation officer informs you is a member of a criminal street gang.
" You're not to visit or remain in any specific location which you know to be or which the probation officer informs you to be an area of criminal street gang-related activity.
" You're not to be adjacent to any school campus during school hours unless you're enrolled in or with prior permission of the school administrator or probation officer.
" You're not to be present at any court proceeding where you know or the probation officer informs you that a member of a criminal street gang is present or that proceedings concern a member of a criminal street gang unless you are a party, you are a defendant in a criminal action, or you are subpoenaed as a witness, or you have prior permission of the probation officers."
"All of these orders are directed and supervised by the probation officer." "Gang" was defined to mean a criminal street gang as described in Penal Code section 186.22.
An appellate court generally will not find that a trial court has abused its broad discretion to impose probation conditions so long as a challenged condition relates either generally to criminal conduct or future criminality or specifically to the probationer's crime. (People v. Lent (1975) 15 Cal.3d 481, 486; People v. Olguin (2008) 45 Cal.4th 375, 379-380.) A court of appeal will review the reasonableness of a probation condition only if the probationer has questioned it in the trial court. (People v. Welch (1993) 5 Cal.4th 228, 237; see In re Sheena K. (2007) 40 Cal.4th 875, 882 (Sheena K.).)
A court of appeal may also review the constitutionality of a probation condition, even when it has not been challenged in the trial court, if the question can be resolved as a matter of law without reference to the sentencing record. (Sheena K., supra, 40 Cal.4th at pp. 888-889.)
"Inherent in the very nature of probation is that probationers 'do not enjoy "the absolute liberty to which every citizen is entitled." ' [Citations.] Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens." (U. S. v. Knights (2001) 534 U.S. 112, 119.) Nevertheless, probationers are not divested of all constitutional rights. "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 [constitutional] challenge on the ground of vagueness. [Citation.] A probation condition that imposes limitations on ...