(Super. Ct. No. MCYKCRBF100000794)
The opinion of the court was delivered by: Hull , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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. ...