P. v. Bermudez CA1/4

Filed 7/26/13 P. v. Bermudez CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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