People v. Tinoco CA5

Filed 2/20/14 P. v. Tinoco CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F066774 Plaintiff and Respondent, (Super. Ct. No. F13900091) v.

JOSE TINOCO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Jon N. Kapetan, Judge. Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Cornell, Acting P.J., Gomes, J. and Poochigian, J.

After pleading no contest to stealing a vehicle and receiving a stolen vehicle, defendant José Tinoco was granted probation with various conditions attached. On appeal, he contends some probation conditions are unconstitutionally overbroad and/or vague. We will affirm. DISCUSSION At the sentencing hearing, the trial court pronounced the following probation conditions, among others:

“You are not to be in a gang or associate with any person in a gang as defined by Penal Code section 186.22[, subdivisions] (e) and (f). [¶] You are not to wear or possess any gang related paraphernalia or indicia; however, you are not required to remove any presently existing tattoos.” The minute order expressed these conditions somewhat differently:

“Do not be involved in or associate with any person known to you to be a gang (meaning a ‘criminal street gang’ as defined in Penal Code Section 186.22[, subdivisions (e) and (f)]) member. Do not wear or possess any item known to be such by you including any gang insignia, moniker or pattern, jewelry with gang significance, nor display insignia, moniker or other markings of gang significance known to be such by you on your person or property as may be identified by law enforcement or the Probation Officer, except that you shall not be required to remove the tattoos on your body that existed at the time of sentencing.” I. Gang Association and Paraphernalia Defendant contends the trial court imposed unconstitutionally overbroad and/or vague probation conditions when it advised him not to associate with gang members and not to wear or possess any gang paraphernalia without including a knowledge requirement. In response, the People argue that defendant had adequate notice of the knowledge requirement because the court’s minute order included it with the language “known to you” and “known to be such by you.” The People explain that in a case like this, the minute order clarifies the court’s oral pronouncement. We agree.