People v. Gonsalves ( 2021 )

Filed 6/30/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A159031
v.
MICHAEL CARLOS GONSALVES, (Alameda County
Super. Ct. No. 17-CR-037139)
Defendant and Appellant.
A jury convicted defendant Michael Carlos Gonsalves of grand theft
(Pen. Code,1 § 484e, subd. (d)) and fraudulent possession of personal
information (§ 530.5, subd. (c)(3)), and the trial court sentenced him to three
years of probation. On appeal, defendant challenges the validity of a
probation condition forbidding him from associating with any persons known
to him to have a “criminal record.”
In the published portion of our opinion, we conclude the challenged
condition is constitutionally flawed. The condition’s use of the term “criminal
record” is impermissibly vague because it has no settled meaning and may
include a record of an arrest resulting in no charge or conviction. And by
broadly encompassing a prohibition on association with persons having mere
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication, with the exception of part B of the
Discussion.
1 Further section references are to the Penal Code unless stated
otherwise.
1
arrest histories without charge or conviction, the condition is not carefully
tailored to the government’s interests in rehabilitating defendant and
protecting the public. In the unpublished portion of our opinion, we conclude
that defendant’s probation term must be reduced in accordance with
Assembly Bill No. 1950 (Stats. 2020, ch. 328, § 2 (2019–2020 Reg. Sess.)
(Assembly Bill No. 1950).) Accordingly, we reverse and remand for
resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Briefly, the testimony at trial established the following. In November
2017, a Fremont Police Officer investigating a report of suspicious
circumstances at a grocery store encountered defendant and two individuals
in the store parking lot. Defendant was in possession of a knife, credit cards
in the names of Anna C. and Tracy J.,2 three cell phones, and a DoubleTree
hotel key card. Defendant claimed to have permission to possess Anna C.’s
credit cards, and Tracy J. testified her credit cards had been stolen from her
car earlier that year. The hotel card contained credit card information for
Carl C. who did not know how his information got onto the card. The
People’s expert on identity theft testified that someone had transferred Carl
C.’s information onto the hotel card via the magnetic strip.
The cell phones found in defendant’s possession contained personal
identifying information for numerous people who did not know defendant or
give him permission to use their information. The cell phones had been used
to access websites where personal identifying information could be illegally
purchased and contained metadata indicating they belonged to defendant.
2 Pursuant to the California Rules of Court, rule 8.90, governing “Privacy
in opinions,” we refer to the victims by their first name and last initial.
2
The jury found defendant guilty of misdemeanor grand theft (§ 484e,
subd. (d)) and felony fraudulent possession of personal information (§ 530.5,
subd. (c)(3)).
At sentencing, the trial court denied defendant’s request to reduce the
felony conviction to a misdemeanor, noting that his criminal history,
although nonviolent, was “quite . . . lengthy” and that “he has not performed
well in that connection.” In sentencing defendant to three years of felony
probation, the court considered the facts that defendant was “[a]rmed, sort of”
with a knife at the time of his arrest, that his criminal record was “not
encouraging,” that his prior record reflected “a pattern of regular and
increasingly serious conduct,” and that his prior performance on probation
was “not encouraging” and had been “medium to poor.” (See Cal. Rules of Ct.,
rule 4.414.)
As one of the conditions of probation, the trial court ordered defendant
not to “associate with[] any person known to [him] to have a criminal record.”
Defendant appealed.
DISCUSSION
A. Challenges to the Probation Condition
We observe at the outset that defendant does not challenge the
reasonableness of the association condition under the longstanding
framework of People v. Lent (1975) 15 Cal.3d 481 (Lent).3 Rather, he
3 In Lent, the California Supreme Court adopted a three-prong test for
determining whether a probation condition is unreasonable. “A condition of
probation will not be held invalid unless it ‘(1) has no relationship to the
crime of which the offender was convicted, (2) relates to conduct which is not
in itself criminal, and (3) requires or forbids conduct which is not reasonably
related to future criminality.’ ” (Lent, supra, 15 Cal.3d at p. 486.) While
defendant does not raise a Lent challenge, he argues that cases discussing
Lent’s third prong “still apply” to constitutional overbreadth challenges, as
3
primarily argues the association condition is unconstitutionally vague and
overbroad. Although defendant did not make this objection in the
proceedings below, a constitutional challenge to a probation condition may be
raised for the first time on appeal where, as here, it presents pure questions
of law that can be resolved without reference to the particular sentencing
record developed in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875,
888–889 (Sheena K.).)
The right of association is constitutional but “ ‘may be restricted if
reasonably necessary to accomplish the essential needs of the state and
public order.’ [Citations.] Such restrictions are ‘ “part of the nature of the
criminal process.” ’ ” (People v. Lopez (1998) 66 Cal.App.4th 615, 627–628
(Lopez).) “Trial courts have broad discretion to set conditions of probation in
order to ‘foster rehabilitation and to protect public safety pursuant to . . .
section 1203.1. [Citations.] If it serves these dual purposes, a probation
condition may impinge upon a constitutional right otherwise enjoyed by the
both “examine the fit between the proscribed conduct and the goal of
rehabilitation.” Accordingly, defendant draws upon cases analyzing Lent’s
third prong (i.e., People v. Brandão (2012) 210 Cal.App.4th 568 (Brandão)) to
support his constitutional overbreadth claim.
We note that in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), a
majority of the Supreme Court articulated a proportionality requirement in
the third Lent prong over the Chief Justice’s dissenting view that the
requirement imported “an unduly exacting proportionality inquiry into the
Lent framework” (id. at p. 1130 (conc. & dis. opn. of Cantil-Sakauye, C.J.))
that “needlessly subvert[ed]” the then-existing approach (ibid.) consisting of
an “additional layer of analysis, above and beyond the Lent test,” reserved for
constitutional overbreadth challenges (id. at p. 1133). Here we do not rely
upon defendant’s cited Lent cases in our overbreadth analysis, and
accordingly, we need not decide whether they are directly applicable in
constitutional overbreadth cases.
4
probationer, who is ‘not entitled to the same degree of constitutional
protection as other citizens.’ ” (Lopez, at p. 624.)
Constitutional considerations provide “a second level of scrutiny”
beyond the Lent framework. (People v. O’Neil (2008) 165 Cal.App.4th 1351,
1356 (O’Neil).) Thus, a reviewing court will apply a different standard of
review depending on “the condition’s effect on a defendant’s civil liberties.
‘ “[A] probation condition that imposes limitations on a person’s
constitutional rights must closely tailor those limitations to the purpose of
the condition to avoid being invalidated as unconstitutionally overbroad.” ’
[Citation.] All others are reviewed for abuse of discretion[.]” (Brandão,
supra, 210 Cal.App.4th at p. 573.)
1. Constitutional Vagueness
“ ‘ “[T]he underpinning of a vagueness challenge is the due process
concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the
due process concepts of preventing arbitrary law enforcement and providing
adequate notice to potential offenders’ [citation], protections that are
‘embodied in the due process clauses of the federal and California
Constitutions.’ ” ’ ” (In re D.H. (2016) 4 Cal.App.5th 722, 727 (D.H.).) To
withstand a vagueness challenge, a probation condition must be sufficiently
precise for probationers to know what is required of them, and for the court to
determine whether the condition has been violated. (Sheena K., supra, 40
Cal.4th at p. 890.) In making this determination, courts are not limited to
the condition’s text and must consider other sources of applicable law,
including judicial construction of similar provisions. (People v. Hall (2017) 2
Cal.5th 494, 499–501 (Hall).)
Defendant argues the association condition at issue is
unconstitutionally vague because the term “criminal record” has no settled
5
meaning and may include persons who were merely arrested but not charged
or convicted of any crime. We agree. As defendant observes, Merriam-
Webster Dictionary defines “criminal record” as “a known record of having
been arrested in the past for committing a crime.” (Merriam-Webster Dict.
Online (2021) [as of June 30, 2021].) Statutory
law, moreover, requires the Department of Justice to maintain “state
summary criminal history information,” a term that includes “dates of
arrests, arresting agencies and booking numbers.” (§ 11105, subd. (a)(1)(A).)4
The People offer no direct rebuttal to these points and do not dispute
that a reasonable construction of the term “criminal record” includes arrest
information. Instead, the People posit that the challenged condition avoids
unconstitutional vagueness because it is premised on the third party’s
criminal record being “known” to defendant. We disagree, as the knowledge
requirement does nothing to clarify the term “criminal record.”
D.H.’s reasoning on this point is instructive. There, the probationer
challenged a condition prohibiting him from accessing “pornography.” Our
colleagues in Division One held that the term “pornography” was
4 Looking to other statutory constructions of “criminal record” and
similar terms (Hall, supra, 2 Cal.5th at pp. 499–501), we observe that under
section 1000.4, where an eligible defendant in a drug abuse case successfully
completes a pretrial diversion program, the arrest is deemed to have not
occurred, and “[t]he defendant may indicate in response to any question
concerning his or her prior criminal record that he or she was not arrested or
granted pretrial diversion for the offense . . . .” (§ 1000.4, subd. (a), italics
added.) Additionally, section 13102 defines “criminal offender record
information” to include “a summary of arrests,” and section 13301,
subdivision (a), defines “record” to mean the “master local summary criminal
history information as defined in section 13300,” which defines the term to
include “dates of arrest, arresting agencies and booking numbers.” (§ 13300,
subd. (a)(1).)
6
unconstitutionally vague, and that adding an explicit knowledge requirement
did not address the term’s “inherent vagueness.” (D.H., supra, 4 Cal.App.5th
at pp. 728–729.) The court distinguished association conditions amenable to
modification by an express knowledge requirement (i.e., non-association with
“gang members”), because in those instances, “the vagueness arises not
because the category itself is unclear, but instead because it is unclear
whether particular people, areas, or items fall within the category.” (Id. at
p. 729.) As in D.H., there is an inherent vagueness in the term “criminal
record” as it relates to arrest information. The ambiguity is not cured by a
requirement that defendant know of an associate’s “criminal record,” as the
inherent vagueness of what constitutes a criminal record remains.
The People alternatively contend the condition may be modified so that
the probation officer can specify whether “criminal record” includes arrest
records. We cannot agree. Although a trial court may delegate to the
probation officer those details that are necessary to implement the terms of
probation, the People’s suggested modification would improperly delegate the
determination of the “nature of the prohibition” to the probation department.
(O’Neil, supra, 165 Cal.App.4th at pp. 1358–1359.)
2. Constitutional Overbreadth
A probation condition “ ‘is unconstitutionally overbroad . . . if it
(1) “impinge[s] on constitutional rights,” and (2) is not “tailored carefully and
reasonably related to the compelling state interest in reformation and
rehabilitation.” [Citations.] The essential question in an overbreadth
challenge is the closeness of the fit between the legitimate purpose of the
restriction and the burden it imposes on the defendant’s constitutional
rights—bearing in mind, of course, that perfection in such matters is
7
impossible, and that practical necessity will justify some infringement.’ ”
(People v. Arevalo (2018) 19 Cal.App.5th 652, 656–657 (Arevalo).)
In disputing the overbreadth of defendant’s association condition, the
People rely on Lopez, supra, 66 Cal.App.4th 615, which addressed a condition
that prohibited the probationer’s association with gang members. (Id. at
p. 622.) While agreeing that the word “gang” had both benign and sinister
connotations and was therefore vague in the abstract (id. at p. 631), the
Lopez court ultimately determined that, viewed in context, “it is apparent the
word was intended to apply only to associations which have for their purpose
the commission of crimes” (id. at p. 632). Here, in contrast, the People
identify no factors that, in context, suggest defendant’s association condition
was not intended to apply to persons with mere arrest histories and no
records of charges or convictions. Thus, Lopez does not support the People’s
position.
The People’s citation to People v. Robinson (1988) 199 Cal.App.3d 816 is
similarly unavailing. While Robinson involved a comparable condition that
prohibited the probationer’s association with “persons of known criminal
record,” the court mainly determined the condition was a reasonable
preventative measure to avoid future criminality under the three-pronged
Lent test. (Robinson, at pp. 817–818.) Although Robinson “perceive[d] no
constitutional infirmity” in the probation condition (id. at p. 818), the court
did not consider the precise issue here, i.e., whether the term “criminal
record” was unconstitutionally vague or overbroad because it included mere
arrest records. The same is true for Birzon v. King (2d Cir. 1972) 469 F.2d
1241, one of two cases cited by Robinson, which summarily concluded that
“criminal record” referred to “conviction for crime” in denying habeas corpus
8
relief to a parolee convicted of violating parole by associating with several
persons having criminal conviction records. (Birzon, at pp. 1242–1243.)
The other case cited by Robinson, United States v. Furukawa (9th Cir.
1979) 596 F.2d 921 (Furukawa), likewise involved no constitutional
vagueness or overbreadth challenge. There, the court interpreted a condition
that required the probationer to associate only with “law-abiding persons” to
validly prohibit association with persons currently violating the law. (Id. at
p. 922.) In distinguishing such a condition from one banning association with
persons having a criminal record, the court reasoned: “ ‘A person disobeying
the law today and hence not being law-abiding may as yet have no criminal
record, and a person with a past record may be entirely law-abiding today.’ ”
(Ibid.) Furukawa lends no meaningful support to the People’s position, and
in fact suggests that temporal and other considerations are appropriate for
narrowly tailoring an association restriction. (See United States v. Napulou
(9th Cir. 2010) 593 F.3d 1041, 1045 (Napulou) [citing Furukawa in holding
that a probation condition prohibiting association with persons convicted of
misdemeanors was temporally overbroad].)
The People argue the association condition’s knowledge requirement
mitigates any overbreadth concerns. We disagree. Whether or not defendant
knows the arrest history of any given individual is beside the point. The
controlling question is whether the prohibition is carefully tailored to
advance the government’s interests in reformation and rehabilitation.
(Arevalo, supra, 19 Cal.App.5th at pp. 656–657.) The People, we note,
emphasize the government’s interests are reasonably advanced by
prohibiting defendant’s association with “individuals he knows to have
criminal convictions.” (Italics added.) We have no argument with that
proposition as a general matter, but the People offer no argument or
9
rationale showing the government’s interests are also promoted by a blanket
ban on defendant’s association with persons who have been arrested but not
charged or convicted. We conclude the challenged condition is not carefully
tailored to advance the government’s interests in reformation and
rehabilitation.
Our decision is informed by the Legislature’s efforts over the years to
mitigate the prejudicial use and effect of arrest records. For instance, when a
person is arrested and released without charge, “any record of arrest of the
person shall include a record of release” and “the arrest shall not be deemed
an arrest, but a detention only.” (§ 849.5.) Additionally, an arrest record
may be ordered sealed on the petition of a minor arrested for a misdemeanor
and released without formal charge, after dismissal of the proceedings or
after acquittal. (§ 851.7.) Arrest records may also be sealed on motion of a
person charged and acquitted of any offense where it appears to the judge
that the person was “factually innocent” (§§ 851.85–851.86) and on motion of
eligible drug offenders who successfully complete a pretrial diversion
program (§ 851.90). In a similar vein, state and local agencies are prohibited
from asking or requiring an applicant for a license, certificate, or registration
to reveal any record of arrest not resulting in conviction or a plea of nolo
contendere. (Bus. & Prof. Code, § 461.) Moreover, both public and private
employers are barred from asking job applicants to disclose information
concerning an arrest or detention that did not result in conviction, and from
seeking or using arrest records in determining the conditions of employment.
(Lab. Code, § 432.7, subd. (a)(1).)
Courts, too, have historically guarded against the prejudice that stems
from evidence of mere arrests. “[I]t has long been held that evidence of an
accused’s prior arrests is inadmissible” (People v. Anderson (1978) 20 Cal.3d
10647, 650) because such evidence is more prejudicial than probative (People v.
Williams (2009) 170 Cal.App.4th 587, 609–610; People v. Lopez (2005) 129
Cal.App.4th 1508, 1523). “The mere fact that a man has been arrested has
very little, if any, probative value in showing that he has engaged in any
misconduct. An arrest shows nothing more than that someone probably
suspected the person apprehended of an offense. When formal charges are
not filed against the arrested person and he is released without trial,
whatever probative force the arrest may have had is normally dissipated.”
(Schware v. Board of Bar Exam. of State of N. M. (1957) 353 U.S. 232, 241.)
In short, a mere record of arrest generally is not probative on the law-
abiding character of the arrestee. It follows that a probationer’s knowing
association with such a person does little, if anything, to advance the
government’s interests in rehabilitating the probationer and protecting the
public. Rather than being narrowly tailored to interfere minimally with
defendant’s constitutional freedom of association, the condition here
unnecessarily impairs it.
Applying settled principles for review of probation conditions that
impinge on constitutional rights, we conclude defendant’s constitutional
challenge has sufficient merit to warrant reversal.5
3. Other Challenges
Defendant contends that in order to pass constitutional muster, the
association condition must be limited to the two individuals present at the
5 Our decision should not be read as casting doubt on conditions that
prohibit a probationer from associating with a more narrowly defined class of
persons (e.g., known gang members or drug offenders) simply because their
criminal histories consist only of arrests with no charges or convictions. We
decide only that the blanket prohibition on defendant’s association with all
persons having a known criminal record is impermissibly overbroad.
11
time of his arrest, or to persons recently engaged in the crime of identity
theft, and it cannot include persons with only past records of criminal
convictions.
As the People point out, “the nature of [defendant’s] convictions is not
so easily shoehorned into such a specific criminal class.” Not only did the
evidence at trial raise questions about how defendant came into possession of
Tracy J.’s stolen cell phones and the hotel card containing Carl C.’s credit
card information, but the record contains salient facts about defendant’s
criminal history. As recounted above, at sentencing the trial court
highlighted defendant’s “pattern of regular and increasingly serious conduct”
and his poor performance while on probation. Defendant’s prior convictions
included unlawful use of controlled substances (Health & Saf. Code, § 11550,
subd. (e)), carrying a concealed firearm (§ 12025, subd. (a)(1)), and unlawful
possession of a controlled substance with a firearm (Health & Saf. Code,
§ 11370.1). In the instant case, defendant was arrested in possession of a
knife and pepper spray on his person, and he admitted to daily
methamphetamine use.
On this record, the trial court was not constitutionally constrained to
prohibit defendant’s association with just the two individuals present at the
time of his arrest or persons known to be engaged only in the crime of
identity theft. On remand, however, the trial court may consider any
association condition consistent with the views expressed in this opinion,
taking into account all factors bearing on the reasonableness and
proportionality of the condition (Ricardo P., supra, 7 Cal.5th at p. 1122; Lent,
supra, 15 Cal.3d 481), including temporal and other considerations (Napulou,
supra, 593 F.3d at p. 1045).
12
Defendant’s remaining arguments are forfeited. He contends the
association condition (1) wrongfully prohibits him from forging beneficial
relationships with individuals in substance abuse and reentry treatment
programs; and (2) has a disproportionate impact on Latino and Black
probationers who are more likely to have family members, friends, and
community members with records of conviction.
Unlike defendant’s vagueness and overbreadth challenges, these
contentions do not raise pure questions of law, and accordingly, traditional
objection and waiver principles apply. (Sheena K., supra, 40 Cal.4th at
p. 889.) For both contentions, defendant relies on factual assertions that are
extrinsic to the record and were not presented below. (People v. Relkin (2016)
6 Cal.App.5th 1188, 1194 [failure to timely object to probation condition
forfeits claim of error on appeal].) Additionally, he makes no contention that
he would have sought substance abuse or reentry treatment but for the
association condition at issue, or that he has relatives or close friends with
records of criminal convictions. Accordingly, we decline to consider these new
legal theories for the first time on appeal. (Bogacki v. Board of Supervisors
(1971) 5 Cal.3d 771, 780.)
B. Assembly Bill No. 1950
In supplemental briefing, defendant argues, and the People concede,
that the three-year probation term must be reduced pursuant to Assembly
Bill No. 1950.
At the time of defendant’s sentencing in November 2019, former section
1203.1 “authorized felony probation ‘for a period of time not exceeding the
maximum possible term of the sentence’ but where the ‘maximum possible
term of the sentence is five years or less, then the period of suspension of
imposition or execution of sentence may, in the discretion of the court,
13
continue for not over five years.’ ” (People v. Quinn (2021) 59 Cal.App.5th
874, 879 (Quinn).) Assembly Bill No. 1950, effective January 1, 2021,
amended section 1203.1, subdivision (a), to now provide: “The court, or judge
thereof, in the order granting probation, may suspend the imposing or the
execution of the sentence and may direct that the suspension may continue
for a period of time not exceeding two years, and upon those terms and
conditions as it shall determine.”
By default, criminal statutes are presumed to apply prospectively.
(People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307.) But where an
amendatory statute lessens the punishment for criminal conduct and there is
no savings clause, the rule is that the amendment will operate retroactively
so that the lighter punishment is imposed. (People v. Frahs (2020) 9 Cal.5th
618, 627–628.) We agree with the reasoning and conclusions of the courts
holding that Assembly Bill No. 1950’s felony probation limitation is an
ameliorative change in the law that applies retroactively. (People v. Stewart
(2021) 62 Cal.App.5th 1065, 1073–1074; People v. Sims (2021) 59 Cal.App.5th
943, 963–964; Quinn, supra, 59 Cal.App.5th at pp. 882–883; People v. Burton
(2020) 58 Cal.App.5th Supp. 1, 15–16.) Accordingly, defendant is entitled on
remand to seek a reduced probation term under Assembly Bill No. 1950.
DISPOSITION
The judgment is reversed in part, and the matter is remanded for
resentencing consistent with this opinion. In all other respects, the judgment
is affirmed.
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_________________________
Fujisaki, Acting P. J.
WE CONCUR:
_________________________
Petrou, J.
_________________________
Wiseman, J.*
A159031
* Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
15
People v. Gonsalves (A159031)
Trial Court: Alameda County
Trial Judge: Hon. Thomas Stevens
Attorneys:
Spero Law Office and Leah Spero for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General,
Rene A. Chacon, Supervising Deputy Attorney General, Masha A. Dabiza,
Deputy Attorney General, Jalem Z. Peguero, Deputy Attorney General for
Plaintiff and Respondent.
16