IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Siskiyou)
December 1, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JOSHUA LEE BETTENCOURT, DEFENDANT AND APPELLANT.
(Super. Ct. No. MCYKCRBF100000794)
The opinion of the court was delivered by: Hull , Acting P. J.
P. v. Bettencourt
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Joshua Lee Bettencourt entered a plea of guilty to a May 2010 first degree burglary. The trial court suspended imposition of sentence and issued an order which included a 180-day jail term among its conditions granting probation. Over his objection, the court later amended the order after a hearing to include conditions that restricted defendant's involvement with criminal gangs.
On appeal, defendant argues only that the restrictions on gang activity are unreasonable. He asserts they do not have any relation to his offense or to deterring future criminality. We affirm the order of probation.
FACTS AND PROCEEDINGS
It was conceded in the trial court that there were no gang-related aspects to defendant's offense. We will therefore omit the stipulated factual basis for his plea incorporated into the probation report, beyond noting that, because he was unemployed and in need of money for his family, he stole about $3,500 in belongings from a neighbor's house in Yreka.
The probation report noted defendant (born 1984) had been shot in the face at age 17 during a gang fight in Modesto. He told the probation officer that after he left the hospital, he had severed all ties with the gang and moved to Siskiyou County. He had been having trouble finding work during the past five years, experiencing anxiety when out in public as an aftermath of the shooting. His only prior offense was a misdemeanor violation of the Vehicle Code. He had a seven-year relationship with his companion, and they had two small children. In order "to encourage the defendant's rehabilitation," the probation officer recommended the conditions relating to gangs in light of his past involvement (although the report did not document any gang-related activity after defendant moved to Siskiyou County).
Defense counsel objected to inclusion of gang restrictions because defendant no longer wanted to be affiliated in any way with a gang and believed that having any indication in his record of gang associations would stigmatize him, forcing him to affiliate while in jail or leading to law enforcement treating him as a gang member. The trial court confirmed that defendant was not claiming that these restrictions would prevent him from doing something he otherwise wanted to do. The probation officer stated she had "asked him for specific information of how he [was able] to become inactive" but was "[dis]satisfied with his explanation." As a result, she thought "it is in his best interest to be deterred from engaging in that behavior . . . . I am not satisfied, based on my experience and training, that the defendant gave me a factual basis to believe that he is a drop-out as he stated."
The prosecutor argued that given defendant's financial "straights," [sic] the restrictions would help be a guard against any reaffiliation with a gang for financial gain. Defense counsel responded that despite present financial difficulties, defendant had not shown any sign of gang activity.
The court concluded that defendant had significant gang activity in the past, and even though he had acted to divorce himself from that milieu he had also committed a present serious offense as a result of financial pressure. It therefore thought the gang restrictions were appropriate.
The Probation Condition
In granting probation, a trial court has broad discretion to impose conditions for the purpose either of public protection or a defendant's rehabilitation. (People v. Perez (2009) 176 Cal.App.4th 380, 383.) In order to restrict conduct that is not itself criminal, a condition must have a reasonable relation to the offense or to the deterrence of future criminality. (Ibid.; People v. Harrisson (2005) 134 Cal.App.4th 637, 641.) Restraints on freedom of association and expression in order to prevent drifting into gang affiliation are reasonably related to deterrence of future criminality because they impede the path leading to participation in criminal gang activity. (People v. Lopez (1998) 66 Cal.App.4th 615, 624-625.) However, even a reasonably related condition can be constitutionally overbroad if it substantially limits a probationer's rights and is not tailored closely to its purpose. (Id. at pp. 627-628; Harrisson, at p. 641.)
Defendant argues the gang restrictions in his case are not reasonably related to the deterrence of his future criminality, as he had already forsworn any gang activity on his own since moving to Siskiyou County at age 17. Even though he did not express this belief in the trial court, he contends they are also "onerous" and are therefore overbroad.
We do not find any abuse of discretion on the trial court's part in making defendant subject to gang restrictions despite his demonstrated ability over the past decade at avoiding any gang involvement on his own. The court properly pointed out that defendant's financial straits had driven him to committing a major crime to support his family. As a result, it had a concern that defendant could have a relapse. This reading of the facts was not unreasonable. And, more significantly, the trial court had the benefit of the probation officer's expertise on the issue of successful withdrawal from gang participation. That officer had not found defendant's repudiation of gang participation to be entirely convincing. This is an adequate rational nexus for the gang conditions.
We note, however, that the probation order added several gang restrictions not contained in the probation report. These include prohibitions on the possession of graffiti materials or being present on the grounds of any school without the approval of the administration, and directing defendant to abide by any curfew that the court or probation office set. As these exceed the scope of the trial court's oral adoption of the conditions as set forth in paragraph 18 of the probation report, we shall modify the order to delete conditions 18f, 18g, and 18j. (Though conditions 18k-18m also were not among the original gang conditions, they simply repeat other conditions of probation imposed elsewhere.)
As for defendant's essentially conclusory claim that these conditions are overbroad, he complains they make him subject to police contacts without evidence of any criminal activity for the purpose of taking photographs or fingerprints. However, these conditions do not impose any restrictions more severe than the general conditions that subject him to warrantless searches of his person or property at any time and obligate him to submit to chemical testing and biological sampling. We therefore reject his argument.
Our March 2010 miscellaneous order No. 2010-002 has deemed the issue of conduct credits for presentence custody to be raised in pending appeals without further briefing. We note the probation report correctly applied the January 2010 version of Penal Code section 4019 to defendant's custody of five days (see former subds. (b)(2) & (c)(2) [Stats. 2009, 3d Ex. Sess., ch. 28, § 50]; compare present § 4019, which reinstates 2009 version of statute prospectively only for jail inmates, effective Sept. 28, 2010 [Stats. 2010, ch. 426, § 5]). It also correctly noted that he did not earn two for two conduct under those amendments credit because his burglary conviction is a serious felony (Pen. Code, § 1192.7, subd. (c)(18); see § 2933 [same restriction on one for one credit for inmate sentenced to prison after Sept. 2010]). However, it erred in calculating only one day of conduct credit rather than two for his initial four-day period of custody.
This is not an abstract question of law on appeal from a probation order, nor is it moot if the remainder have already been applied to the jail term that he presumably has completed, because excess credits can be applied to his fines at a rate of $30 per day. (People v. McGarry (2002) 96 Cal.App.4th 644, 647-648.) We shall therefore direct the trial court to order its probation department to prepare an amended page 11 of the probation report indicating defendant had 2 days of conduct credits for a total of 6 days of credits.
The order granting probation is modified to omit conditions 18f, 18g, and 18j. As thus modified, it is affirmed. The trial court shall issue an amended order reflecting these changes. The trial court shall also direct the probation department to prepare an amended probation report reflecting two days of conduct credits.
We concur: BUTZ , J. HOCH , J.
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