Filed 7/26/13 P. v. Bermudez CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A136220
v.
ABEL BERMUDEZ, (Solano County
Super. Ct. No. FCR290461)
Defendant and Appellant.
I.
INTRODUCTION
Appellant Abel Bermudez challenges two conditions of felony probation imposed
following his conviction by jury for assault with a deadly weapon (Pen. Code, § 245,
subd. (a)).1 He contends that the two conditions, limiting his association with known
gang members and prohibiting him from applying any tattoos to his body, were
unconstitutionally overbroad.
We conclude that appellant‟s challenges have been forfeited by his failure to
object below. Accordingly, we affirm the conditions of probation imposed.
1
All further statutory references are to the Penal Code, unless otherwise
indicated.
1
II.
FACTUAL AND PROCEDURAL BACKGROUNDS2
On June 12, 2012,3 an amended information was filed by the Solano County
District Attorney charging appellant with one count each of assault with a deadly weapon
(§ 245, subd. (a)(1)), vandalism (§ 594, subd. (a)), driving under the influence of alcohol
or drugs (Veh. Code, § 23152, subd. (a)), and driving while having a blood-alcohol
content of .08 percent or higher (Veh. Code, § 23152, subd. (b)). The information also
included special allegations, including that appellant committed the crimes alleged in
counts one and two for the benefit of a criminal street gang, within the meaning of
section 186.22.
A jury trial commenced on June 12, and continued over eight days. On June 22,
the jury returned its verdict finding appellant guilty of all four counts. The jury also
found not true the criminal street-gang special allegations relating to counts one and two.
The trial judge referred the issue of sentencing to the county probation department for a
presentence evaluation.
A presentence report was filed by the probation department on July 27,
recommending a formal grant of probation with conditions imposed. As pertinent to the
issue raised on appeal, the report indicated that appellant had a juvenile record in that he
had been adjudged a ward of the court in 2006 after appellant and his friends had
“tagged” gang graffiti on a utility box and on other public property. At that time,
appellant admitted to “h[anging] out” with gang members, and his mother confirmed then
he had Sureño gang affiliation. Appellant‟s mother was interviewed in connection with
2
While the court record filed on appeal is comprised of more than 1200 pages,
the reporters‟ transcripts from appellant‟s preliminary hearing and subsequent trial are
not material to the single issue raised on appeal. Appellant does not argue on appeal that
there was no factual basis for imposing the no-gang-contact and tattoo prohibitions as
conditions of his probation. Therefore, only those facts and proceedings which relate to
appellant‟s contention on appeal that the challenged conditions imposed were
unconstitutionally overbroad are discussed.
3
All further dates are in the calendar year 2012, unless otherwise indicated.
2
the current matter, and confirmed again that he “was involved in a gang lifestyle and was
rebellious.”
Among the conditions of probation recommended by the probation department
were the following:4
“Defendant is prohibited from being present at any known gathering of any gang.
“Defendant is prohibited from associating with any known members or associates
of any gang.
“Defendant is prohibited from associating with persons in possession of weapons.
“Defendant is prohibited from wearing any gang-associated clothing, emblems, or
insignia.
“Defendant is prohibited from possession [sic] gang-related paraphernalia,
including, but not limited to, gang graffiti, symbols, photographs, member‟s roster, or
other gang writings; and gang-oriented publications, including, but not limited to, „Teen
Angels‟ and „Street Life.‟
“Defendant is prohibited from acquiring any tattoos, permanent or temporary,
and/or any gang-related burns/marks.
“Defendant is prohibited from being present at any Court proceeding involving
gang members to whom he/she is not a party or a subpoenaed witness.”
Sentencing took place at a hearing held on July 27. After the trial court announced
its decision to follow the recommendation of the probation department and grant
probation, appellant‟s counsel made an objection to the inclusion of all proposed “gang
terms” because “the gang allegation was found untrue in this case.” The trial court went
on to put on the record a number of other, unrelated conditions of probation, and then
turned to those relating to gang contacts and activities.
First, the trial court stated that, despite the jury‟s negative findings as to the
criminal street gang allegation: “I think there is ample evidence to support gang activities
4
The conditions were checked on a printed template indicating that the template
had been revised as of March 27.
3
on behalf of this gentlemen. And I think it‟s essentially for his rehabilitation that he not
associate—or that he comply with certain of these gang terms. I may not impose all of
them.” The court then went through each proposed probationary gang term individually.
While doing so, the only additional comment made by appellant‟s counsel concerned the
single condition that appellant not wear any gang associated clothing, noting that the
condition was “a little vague.” In response, the court stated that it would not impose a
prohibition relating to clothing at all. The court on its own also modified several other
gang terms of probation recommended in the presentence report.
In total, the court imposed the following conditions to which no additional
objections were made:
“Not be present at any known gathering areas of [gangs].
“Not knowingly associate with any known members or associates of any gang.
“Not possess a weapon or associate with persons in possession of weapons.
“Not wear any gang-associated . . . emblems/insignia.
“Not possess any gang-related paraphernalia (including, but not limited to, gang
graffiti, symbols, photographs, members‟ rosters, or other gang writings) . . . .
“Not acquire any tattoos (permanent or temporary), or any gang-related
burns/marks.
“Not attend any court proceedings involving gang members to which defendant is
not a party or a subpoenaed witness.”
This appeal followed.
III.
DISCUSSION
As noted, appellant challenges the breadth of only two of the so-called “gang
terms” of probation imposed by the trial court as conditions of his probation. Perhaps
anticipating respondent‟s forfeiture argument, appellant characterizes trial counsel‟s
objection below as being a “blanket objection,” which was sufficient to allow the court to
modify or delete the challenged instructions, or to explain why they were being imposed,
thereby preserving the issue for appeal.
4
We disagree that counsel‟s objection encompassed the overbroadness argument
made now on appeal. Trial counsel‟s objection was only that no gang terms of probation
could be imposed because the jury found the section 186.22 street gang enhancements not
to be true.5 The only other point made by counsel, whether it was in the form of an
objection or not, was that the gang “clothing” prohibition was “a little vague,” a point
taken by the trial court in striking that condition entirely.
Our Supreme Court recently has reviewed the law of forfeiture through failure to
object at sentencing in the trial court in People v. McCullough (2013) 56 Cal.4th 589
(McCullough). In that case, the issue was whether the failure to object to the imposition
of a booking fee forfeited the right to raise on appeal the lack of substantial evidence
supporting the defendant‟s ability to pay. (Id. at p. 591.) The high court concluded that
such a claim was indeed forfeited by failing to object on the ground that there was no
evidence the defendant had the ability to pay the fine. In the course of its analysis, the
court reviewed the recent development of the law dealing with sentencing forfeitures in
general, including those relating to the conditions imposed incident to a grant of
probation:
“Our application of the forfeiture bar to sentencing matters is of recent vintage. In
People v. Welch (1993) 5 Cal.4th 228 . . . (Welch), we held the defendant forfeited a
challenge to the reasonableness of a probation condition because she failed to raise it
when sentenced. In People v. Scott (1994) 9 Cal.4th 331, 354 . . . (Scott), we held the
defendant forfeited a claim that the sentence imposed on him, „though otherwise
permitted by law, [was] imposed in a procedurally or factually flawed manner.‟ Both
cases provided for only prospective application of the rules they announced because
formerly such hearings were „largely conducted under the assumption‟ that sentencing
error claims, including challenges to probation terms, could „be raised in the first instance
on appeal.‟ (Scott, at p. 337; see Welch, at p. 238 [„existing law overwhelmingly said no
5
That ground apparently has not been raised on appeal as a ground for setting
aside the two challenged gang terms. (See People v. Towne (2008) 44 Cal.4th 63, 85-86.)
5
. . . objection‟ to terms of probation „was required‟ to preserve the issue for appeal].)
Welch and Scott brought the forfeiture rule for alleged sentencing errors into line with
other claims of trial court error, rather than placing such claims outside the general rules
regarding forfeiture: unless a party makes a contemporaneous objection, he or she
generally cannot challenge a court‟s ruling for the first time on appeal. ([In re] Sheena K.
[(2007)] 40 Cal.4th [875,] 880-881.)” (McCullough, supra, 56 Cal.4th at p. 594.)
The single case cited by appellant on the forfeiture issue is not of assistance to his
claim that objections to the two gang terms of probation were preserved for appeal. In
People v. Brandão (2012) 210 Cal.App.4th 568. In that case, defense counsel did object
at sentencing on the ground that “ „[t]here is no [gang] nexus in this case.‟ ” (Id. at
p. 571.) However, before counsel could continue with her objection, the trial court
interrupted (albeit not “brusque[ly]”) by stating it was “uninterested in a challenge to the
no-gang-contact provision.” (Id. at p. 572.) Because counsel was not given a reasonable
opportunity to state constitutional grounds for the challenge, the reviewing court
distinguished the circumstances there from those in People v. Gardineer (2000) 79
Cal.App.4th 148, 151, which held that one objecting to probation conditions on
constitutional grounds has an obligation to state those grounds specifically in order to
preserve them on appeal. (Ibid.).6 Therefore, the appellate court concluded that the
defendant‟s objections to the constitutionality of gang terms imposed as a condition of
probation had been preserved the issue for appeal. (Ibid.)
Because appellant made no objection to either term of probation now challenged
on appeal during sentencing, after being given ample opportunity to do so by the trial
court at sentencing, the claims of error have been forfeited.
6
In People v. Lopez (1998) 66 Cal.App.4th 615, cited by appellant in his
appellate briefs in support of the merits of his challenge here, an objection to the no-
gang-contact term of probation was made in the trial court on explicitly stated
constitutional grounds. (Id. at p. 623.)
6
IV.
DISPOSITION
The judgment is affirmed.
_________________________
RUVOLO, P. J.
We concur:
_________________________
RIVERA, J.
_________________________
HUMES, J.
7