People v. Macias CA6

Filed 7/8/16 P. v. Macias CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H041749 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. F26746)

v.

MIKI MACIAS,

Defendant and Appellant.

Defendant Miki Macias pleaded guilty to being a convicted person with a concealed firearm in a vehicle (Pen. Code, § 25400, subd. (a)(1)) and possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). The trial court suspended imposition of sentence and placed defendant on probation for three years under various terms and conditions. On appeal, defendant contends that some of the probation conditions violate due process. We will modify one of the conditions. As modified, the order is affirmed.

I. Statement of Facts Shortly after midnight on June 17, 2012, a sheriff’s deputy stopped defendant’s vehicle, because it did not have a front license plate. Defendant did not have insurance for his vehicle. A records check revealed that there was a court order restraining defendant from possessing or owning firearms. When the deputy asked defendant

whether he had any firearms, he initially stated that he did and then he stated that he did not. Defendant became increasingly nervous, shifted around, was sweating, and had rapid speech during their conversation. Defendant was eventually arrested for being under the influence of a controlled substance. When the deputy searched defendant, he found a small bag containing .8 grams of cocaine. Since defendant’s vehicle was going to be towed, the deputy conducted an inventory search and found a loaded handgun and a Hell’s Angels Motorcycle Club jacket. Defendant had a tattoo on his abdomen with the words “Hells Angels” and a swastika.

II. Discussion Defendant contends that three of the probation conditions are unconstitutionally vague. The trial court stated the conditions as follows: “Not to possess drugs, drug paraphernalia; gang paraphernalia; weapons, any kind of deadly or dangerous weapons. [¶] . . . [¶] You’re not -- you have the gang -- you’re not to be present where place -- in places where gangs hang out. If you know that there’s a gathering of Hells Angels, you better not be anywhere near it. Otherwise, you’ll be in violation of your probation. [¶] . . . [¶] . . . You’re not to possess, wear, use or display any gang paraphernalia.” Shortly thereafter, the following exchange occurred: “MR. BAUM [Prosecutor]: I believe we got all the terms. [¶] The only addendum I would make to the gang terms is there is a decision from the Sixth District that says he has to knowingly not associate with any gang members or associates, to not knowingly be present in any location where other Hells Angels members are present. [¶] THE COURT: Right. I thought I said that, but -- not associate with anyone he knows are gang members. [¶] Anyway, it’s always knowingly, should be knowingly, but the burden -- the standard of proof on a probation violation is preponderance of the evidence. [¶] If you know the people you’re with are 2