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The People v. Antonio Brandao

October 24, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ANTONIO BRANDAO, DEFENDANT AND APPELLANT.



Trial Court: Monterey County Superior Court No.: SS112186 Trial Judge: The Honorable Russell D. Scott (Monterey County Super. Ct. No. SS112186)

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

CERTIFIED FOR PUBLICATION

Defendant Antonio Brandao pleaded no contest to possessing methamphetamine, a felony offense. Nothing in the record indicates that defendant has any gang affiliations or other gang-related history, nor did the underlying offense have anything to do with a gang. On appeal, he claims that the trial court erred by imposing a no-gang-contact probation condition on him. We agree. We will modify the probation condition and, with that modification, affirm the judgment.

PROCEDURAL BACKGROUND

Defendant pleaded no contest to violating subdivision (a) of Health and Safety Code section 11377 by possessing methamphetamine. The trial court suspended imposition of sentence and placed defendant on three years' formal probation, including a condition that he not knowingly associate with any gang members.

The probation report proposed imposing the following no-gang-contact condition:

"Not associate with any individuals you know or are told by the Probation Officer to be gang members, drug users, or [people] on any form of probation or parole supervision."

The report stated that defendant had never been involved with any criminal street gangs, nor did he have any family members who associated with such groups. Whether this information came from independent research, defendant's statement, or both is unclear. The report shows that defendant has a criminal record, but none of the offenses in his record appear to be gang-related. Accordingly, at sentencing, defense counsel objected to having any no-gang-contact probation condition imposed. "[T]here is no [gang] nexus in this case," counsel asserted.

The trial court replied that "the Court's position generally is that we don't want him hanging around gang members, whether he's a gang person or not." The court continued, "the reason that we have this kind of condition is to keep him out of trouble, don't hang around with the wrong crowd. So, it's not saying anything about his associations, except his future associations aren't going to be with those people."

Accordingly, the trial court imposed the following condition: "Not associate with any individuals you know or are told by the Probation Officer to be gang members, drug users, or [people] on any form of probation or parole supervision, except [for] family members subject to the discretion of the Probation Officer."

FACTS

Because defendant pleaded no contest, we take the facts from the probation report.

On November 20, 2011, a sheriff's deputy ran a records check on defendant's car, which he was operating at the time. The car's license plate appeared to have a valid registration sticker, but the records showed that the registration had expired. The deputy stopped defendant and, after further investigation at the scene, arrested him for displaying the invalid sticker (Veh. Code, §§ 4462, subd. (b), 4462.5, 4853), operating an unregistered vehicle (id., § 4000, subd. (a)(1)), possessing 28.5 grams or less of marijuana (Health & Saf. Code, § 11357, subd. (b)), and violating probation (Pen. Code, § 1203.2, subd. (a)). When defendant was booked into jail, the authorities discovered a quantity of methamphetamine on his person, ...


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