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2011 Cal App Lopez - Gang Symbols on Myspace

2011 Cal App Lopez - Gang Symbols on Myspace

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2011 Cal. App. Unpub. LEXIS 4617
2011 Cal. App. Unpub. LEXIS 4617, *
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO JOSE LOPEZ, Defendant and Appellant.E050967COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION TWO2011 Cal. App. Unpub. LEXIS 4617June 21, 2011, Filed
NOTICE:
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.CALIFORNIA RULES OF COURT, RULE8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOTCERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BYRULE 8.1115(b).THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THEPURPOSES OFRULE 8.1115.
PRIOR HISTORY: [*1]
APPEAL from the Superior Court of San Bernardino County. Super.Ct.No. FSB900364. Donna G.Garza, Judge.
DISPOSITION:
Reversed with directions.
CORE TERMS:
gang, probation, criminal street gang, display, myspace, probation officer, garage,registration, affiliation, membership, gang-related, insignia, emblem, gang activity, custody, yeska,bpg, probation revocation hearing, conditions of probation, revocation of probation, probationer,revoked, indicia, revoke, attire, dress, abuse of discretion, paraphernalia, registered, displaying
COUNSEL:
Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant andAppellant.Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W.Schons, Assistant Attorney General, Randall Einhorn, and William M. Wood, Deputy AttorneysGeneral, for Plaintiff and Respondent.
JUDGES:
McKinster, J.; Ramirez, P.J., King, J. concurred.
OPINION BY:
McKinsterFrancisco José Lopez appeals an order revoking and terminating his probation and sentencing him to
OPINION
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three years in state prison. He contends that there was insufficient evidence to support the findingthat he was in violation of one of the two conditions of probation on which the termination was based,and that it would have been an abuse of discretion to revoke his probation based solely on theremaining violation. We will reverse and remand for further proceedings.
PROCEDURAL HISTORY
On April 23, 2009, defendant pleaded guilty to one count of assault by means likely to cause greatbodily injury. (Pen. Code, § 245, subd. (a)(1).)
1
On June 23, 2009, the court granted three yearssupervised
[*2]
probation.
FOOTNOTES
1
All statutory citations refer to the Penal Code.On February 9, 2010, a petition for revocation of probation and remand was filed, alleging thatdefendant had violated the following terms and conditions of his probation:11. Not associate with persons known to defendant to be convicted felons or anyone actively engagedin criminal activity;13. Not associate with persons known to defendant to be gang members or frequent places of knowngang activity;21. Register defendant's address with the appropriate city of county law-enforcement agency,pursuant to section 186.30/section 186.31 within 10 days from release from custody, and submitproof of current registration to the probation officer within 30 days of release from custody;
2
FOOTNOTES
2
Section 186.30 requires a person who has been convicted of a gang-related crime to registerwith the police or sheriff of the city or county of his or her residence within 10 days after releasefrom custody or arrival within the city or county.24. Not wear, display or have in defendant's possession any item associated with gang dress or anyitems prohibited by the probation officer, including but not limited to any insignia, emblem, button,badge, cap,
[*3]
hat, scarf, bandanna, or any article of clothing, hand sign or paraphernaliaassociated with membership or affiliation in any gang.After an evidentiary hearing, the court found that defendant had violated his probation as toconditions 21 and 24.
3
It revoked and terminated probation and sentenced defendant to the middleterm of three years in state prison.
FOOTNOTES
3
Both the minutes and the reporter's transcript refer to condition 25 rather than condition 24. Itis clear that the court intended to refer to condition 24.Defendant filed a timely notice of appeal.
FACTS
On February 5, 2010, probation officer Roger Fansler did a compliance check at defendant's residence
Get a Document - by Citation- 2011 Cal. App. Unpub. LEXIS 4617 https://www.lexis.com/research/retrieve?_m=7d6f47ebcc361b242abd302...2 of 6 6/24/2011 5:32 PM
 
of record. Defendant lived in a small house with his mother and other family members. Fansler hadhis partner search the detached garage. Fansler's partner advised him that a person who identifiedhimself as Joshua Mendoza was sleeping in the garage, which had been converted into a residenceand was occupied by defendant's female cousin. His cousin was dating Mendoza.Fansler knew Mendoza to be a member of the Brown Pride Gang. Next to the area where Mendozawas sleeping, Fansler's partner found what appeared to be a Brown Pride Gang
[*4]
roster with a listof monikers. Defendant was a self-identified member of the Brown Pride Gang. The name "Yeska,"which was defendant's moniker, was listed on the paper.No gang paraphernalia or gang-related clothing or materials were found inside the main house, andthere was no evidence that defendant knew of Mendoza's presence in the garage. Nevertheless,Fansler arrested defendant. He later reviewed defendant's probation file and discovered that theprobation office had no record that defendant had submitted proof that he had registered with lawenforcement as required by the terms and conditions of his probation.A fellow gang team probation officer told Fansler that defendant had in the past maintained severalaccounts on MySpace.com. He ran a search under defendant's moniker, Yeska, and discovered threeMySpace pages. Two had not been accessed recently. The third, with the URLwww.myspace.com/yeskax13, had last been accessed on February 5, 2010, the day defendant wasarrested. The first page of the site appears to identify the site's owner as "yeska bpg INLANDEMPIREX3." Elsewhere, there was a photograph of defendant in typical gang attire, with other youngmen similarly attired.
[*5]
There was a second photograph of defendant, also wearing typical gangattire, captioned "yeska vbpgx3IE." There was also a display of the "BPG" logo.Defendant had registered with the San Bernardino Police Department on November 5, 2009. Thepolice department did not have a policy of providing a copy of the registration to the registrant, nordid it have a policy of reporting the registration to the probation department.The trial court found that defendant was not in violation of conditions 11 and 13 by virtue of Mendoza's presence in the garage, which was a separate residence. It found him in violation of condition 21 for failing to provide proof of registration to the probation department and in violation of condition 24 based on the MySpace page and "other documentation" which indicated that defendantwas "possibly still . . . a member and displaying information that he is still part [of] BPG."
LEGAL ANALYSIS1.THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW TO ESTABLISH THAT DEFENDANTVIOLATED CONDITION 24
Section 1203.2, subdivision (a) authorizes a trial court to revoke probation if the interests of justiceso require and the court, in its judgment, has reason to believe that the
[*6]
person has violatedany of the conditions of his or her probation. (
People v. Rodriguez 
(1990) 51 Cal.3d 437, 440-441.)The applicable standard of proof is a preponderance of the evidence. (
Id.
at p. 447.) In general, wereview a trial court's finding of a violation of probation for substantial evidence. (
People v. Kurey 
(2001) 88 Cal.App.4th 840, 848.) Under that standard of review, we must uphold the trial court'sruling if any rational trier of fact could have found the violation by a preponderance of the evidence.(
People v. Tompkins
(2010) 185 Cal.App.4th 1253, 1260-1261 [Fourth Dist., Div. Two].) We presumein support of the judgment every fact the trier of fact could reasonably deduce from the evidence.(
People v. Alexander 
(2010) 49 Cal.4th 846, 917.) As we will discuss, however, the dispositive issuein this case is whether the evidence was sufficient as a matter of law to support a finding thatdefendant possessed or displayed indicia of membership in a criminal street gang. That is a questionof law, which we review de novo. (
People v. Villalobos
(2006) 145 Cal.App.4th 310, 316, fn. 3 [FourthDist., Div. Two].)As noted above, condition 24 prohibited defendant from wearing,
[*7]
displaying or possessing any
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