Filed 12/3/13 P. v. Smith CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057023
v. (Super.Ct.No. FSB1201823)
EREK KERNELL SMITH, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson,
Jr., Judge. Affirmed as modified.
Jesse W.J. Male, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood and Ifeolu
E. Hassan, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Erek Kernell Smith pled no contest to one count of street
terrorism. (Pen. Code, § 186.22, subd. (a).)1 The parties stipulated that defendant was a
member of a criminal street gang, and that he actively committed a felony offense. The
court placed him on probation for a period of three years under certain probation
conditions.
On appeal, defendant contends that certain probation conditions should be
modified. The People concede, and we agree, that the probation conditions at issue
should be modified. As modified, we affirm the judgment.
PROCEDURAL BACKGROUND
On August 8, 2012, the trial court placed defendant on probation, under certain
terms. One of the terms provided that defendant shall “[n]ot possess any type of drug
paraphernalia, as defined in [Health and Safety Code section] 11364.5[, subdivision] (d).”
(Term No. 12.) The court stated that, on August 28, 2012, it would be adding gang-
related terms, upon argument of counsel. Defendant agreed.
At a hearing on August 28, 2012, the court added more probation terms, including
the following: Term No. 20: “Not associate with persons known to defendant to be gang
members or frequent places of known gang activity”; Term No. 26: “Not display any
gang hand signs”; Term No. 28: “Not wear, display or have in your possession any item
associated with gang dress or any items prohibited by the probation officer”; and Term
No. 29: “You shall not appear at any court building, including the lobby, hallway,
1 All further statutory references will be to the Penal Code, unless otherwise
noted.
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courtroom, or parking lot unless you are a party, defendant, or [subpoenaed as a witness
to a court proceeding].” Defendant did not object to any of these probation conditions.
ANALYSIS
The Probation Conditions at Issue Should Be Modified
Defendant contends that several of his probation conditions are unconstitutionally
overbroad or vague and should be modified. The People concede, and we agree.
A. Standard of Review
In general, the courts are given broad discretion in fashioning terms of probation
or supervised release, in order to foster the reformation and rehabilitation of the offender,
while protecting public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) Thus,
the imposition of a particular condition of probation is subject to review for abuse of that
discretion. “As with any exercise of discretion, the court violates this standard when it
imposes a condition of probation that is arbitrary, capricious or exceeds the bounds of
reason under the circumstances. [Citation.]” (People v. Jungers (2005) 127 Cal.App.4th
698, 702.) However, constitutional challenges are reviewed under a different standard.
Whether a term of probation is unconstitutionally vague or overbroad presents a question
of law, which we review de novo. (In re Sheena K. (2007) 40 Cal.4th 875, 888.) The
failure to object below that a condition is unconstitutionally overbroad does not forfeit
review of the issue on appeal. (Id. at p. 889; People v. Quiroz (2011) 199 Cal.App.4th
1123, 1127 [Fourth Dist., Div. Two].) We will therefore consider defendant’s challenge
to the constitutionality of the conditions.
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B. Term No. 12
Term No. 12 provides that defendant shall “[n]ot possess any type of drug
paraphernalia, as defined in [Health and Safety Code section] 11364.5[, subdivision]
(d)].” This statute describes “drug paraphernalia” as including any kind of product used
for “introducing into the human body a controlled substance.” (Health & Saf. Code,
§ 11364.5, subd. (d).) This definition appears to include devices used with medically
prescribed controlled substances. Thus, defendant contends that the probation condition
is overbroad since there is no rehabilitative interest in preventing him from using
instruments that may be necessary for taking prescription medication. We agree and
grant defendant’s request to modify condition No. 12. It is modified to read: “Not
possess any type of drug paraphernalia, as defined in Health & Safety Code section
11364.5, subdivision (d), except for any item used to administer a medication defendant
was medically prescribed.”
C. Term No. 20
Term No. 20 provides that defendant “[n]ot associate with persons known to
defendant to be gang members or frequent places of known gang activity.” Defendant
contends that this condition is vague because the term “frequent” is ambiguous. We
agree. (People v. Leon (2010) 181 Cal.App.4th 943, 952 (Leon) [holding the word
“frequent” rendered a similar condition unconstitutionally vague because it was “both
obscure and ha[d] multiple meanings.”]) Accordingly, we will modify term No. 20 to
read: “Not associate with persons known to defendant to be gang members or visit places
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of known gang activity.” (See Id. at p. 952; see also § D., post, for further modifications
to this term.)
D. Term Nos. 20, 26, and 28
Defendant asserts that condition Nos. 20, 26, and 28 all use the word “gang,”
without providing a definition of the word “gang.” They read as follow:
“20. Not associate with persons known to defendant to be gang members or
frequent places of known gang activity.”
“26. Not display any gang hand signs.”
“28. Not wear, display or have in your possession any item associated with gang
dress or any items prohibited by the probation officer.”
Defendant requests that these probation conditions be modified to include a
reference to Penal Code section 186.22, subdivision (f), which defines a “criminal street
gang.” We agree and will modify the conditions accordingly.
E. Term No. 29
Term No. 29 prohibits defendant from appearing at “any court building, including
the lobby, hallway, courtroom, or parking lot unless [he is] a party, defendant or
[subpoenaed as a witness to a court proceeding].” Because this term was added as part of
defendant’s gang terms, it appears to be intended to prevent him from intimidating
witnesses in gang-related proceedings. Defendant argues, however, that the term is so
broadly written that it prevents him from attending the courts for legitimate and lawful
purposes, and from accessing any governmental office that shares facilities with a court.
Thus, he contends that it infringes on his First Amendment right of access to the courts.
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The People concede, and we agree, that the term is overbroad. (See Leon, supra, 181
Cal.App.4th at pp. 952-953 [holding that a similar condition was unconstitutionally
broad].) Accordingly, we will modify the term to read: “You shall not appear at any
criminal court proceeding or at any criminal courthouse building, including the lobby,
hallway, courtroom, or parking lot unless you are a party, defendant, or subpoenaed as a
witness to a criminal court proceeding, or you have the express permission of your
probation officer.”
DISPOSITION
We hereby modify defendant’s probation conditions as follows:
Term No. 12 is modified to read: “Not possess any type of drug paraphernalia, as
defined in Health and Safety Code section 11364.5, subdivision (d), except for any item
used to administer a medication defendant was medically prescribed.”
Term No. 20 is modified to read: “Not associate with persons known to defendant
to be gang members or visit places of known gang activity. For purposes of this
paragraph, the word “gang” means a “criminal street gang” as defined in Penal Code
section 186.22, subdivision (f).”
Term No. 26 is modified to read: “Not display any gang hand signs. For purposes
of this paragraph, the word “gang” means a “criminal street gang” as defined in Penal
Code section 186.22, subdivision (f).”
Term No. 28 is modified to read: “Not wear, display or have in your possession
any item associated with gang dress or any items prohibited by the probation officer. For
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purposes of this paragraph, the word “gang” means a “criminal street gang” as defined in
Penal Code section 186.22, subdivision (f).”
Term No. 29 is modified to read: “You shall not appear at any criminal court
proceeding or at any criminal courthouse building, including the lobby, hallway,
courtroom, or parking lot unless you are a party, defendant, or subpoenaed as a witness to
a criminal court proceeding, or you have the express permission of your probation
officer.”
As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
McKINSTER
J.
MILLER
J.
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