P. v. Medina CA3

Filed 3/15/13 P. v. Medina CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, C069022

Plaintiff and Respondent, (Super. Ct. No. CM031872)

v.

MIGUEL MEDINA,

Defendant and Appellant.

Defendant Miguel Medina pleaded guilty to assault by means likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).)1 Great bodily injury (§ 12022.7, subd. (a)) and gang (§ 186.22, subd. (b)(1)) enhancements were dismissed with a Harvey waiver.2

1 Subsequent undesignated statutory references are to the Penal Code. 2 People v. Harvey (1979) 25 Cal.3d 754.

1

Defendant was placed on three years‟ formal probation, subject to various conditions including that he not associate with known gang members or persons known to be associated with a gang. Defendant was also required to register as a gang member. The trial court later revoked probation following a contested hearing at which it found defendant violated the gang association condition. The trial court sentenced defendant to three years in state prison. On appeal, defendant contends the probation condition prohibiting him from associating with any individual associated with a gang is unconstitutionally vague. He also contends there is insufficient evidence to support the trial court‟s finding that he violated this condition. We affirm. FACTUAL AND PROCEDURAL BACKGROUND The Crime On November 9, 2009, defendant, codefendant David Guzman, and a third person ran out of a van and attacked two juveniles. One victim, E.R., was knocked to the ground and kicked in the head and body until he was rigid and unconscious. The other victim, M.R., was punched in the head and knocked to the ground when he tried to intervene. The attack did not stop until other people came to the victims‟ aid. The assailants “ „threw . . . a gang sign, an N for Norte[ñ]o,‟ ” as they left in the van. E.R. sustained a skull fracture and could not remember the assault. M.R. did not want to talk to the police in front of other people. When they were alone, he told the officer that prior to the van‟s stopping, the assailants yelled the word “ „Scrap,‟ ” a slur used by Norteños against members of the rival Sureño gang, at them. Both victims associated and identified with the Sureño gang. The van belonged to codefendant‟s cousin Gregorio Garcia Guzman, a documented Norteño member.