People v. Fowler CA3

Filed 10/24/14 P. v. Fowler CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C075425

Plaintiff and Respondent, (Super. Ct. No. 13F07676)

v.

GLEN FOWLER,

Defendant and Appellant.

Defendant Glen Fowler entered a negotiated no contest plea to possession of marijuana for sale in exchange for probation and 120 days in county jail. The remaining counts (possession of concentrated cannabis and misdemeanor driving without a license) were dismissed in the interest of justice and in view of the plea. The trial court suspended imposition of sentence and granted formal probation for a term of five years subject to certain terms and conditions, including gang-related conditions. On appeal, defendant challenges the gang-related conditions as unconstitutionally overbroad in that they are not supported by the evidence or reasonably related to defendant’s crime or future criminality. We reject defendant’s contention.

1

Prior to defendant entering his plea, he was provided a list of proposed probation conditions. Defense counsel objected to the proposed gang-related conditions as lacking any nexus to defendant or his crimes, disputing that he admitted he was a gang member.1 Defendant agreed to enter his plea and to be sentenced immediately thereafter. After defendant entered his plea, defense counsel renewed the objection to the gang-related conditions. The prosecutor responded: “At the time the defendant was arrested, he was on juvenile probation for selling cocaine and possession of a weapon. His probation conditions were that he was not to associate with gang members and not to possess any dangerous weapons. When he was arrested for this crime, he admitted he was a validated 29th Street Crip. His gang validation was confirmed. “Additionally, when the officers were investigating this case, they looked through pictures -- through the pictures on the defendant’s cell phone and found over fifty pictures of the defendant posing with large quantities of marijuana, cash. “Additionally, [there were] various pictures with the defendant posing while using hands to make gang signals with cash and marijuana. “So I think that his gang activities involved the sale of marijuana. So there is a nexus for these conditions.” (Italics added.) Defense counsel argued that the undated photos showed someone, but not defendant, with guns and throwing gang signs. Defense counsel did not respond to the prosecutor’s representation that defendant had been on juvenile probation with gang- related conditions or that defendant had been validated as a gang member.