P. v. Cerda

Filed 11/29/05 P. v. Cerda CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, Plaintiff and Respondent, v. JOSE ALBERTO NAVARRO CERDA, Defendant and Appellant.

2d Crim. No. B178925 (Super. Ct. No. 1149250) (Santa Barbara County)

The trial court found Jose Alberto Navarro Cerda in violation of his probation, and imposed a two-year prison term. Cerda appeals the imposition of the prison term. We affirm.

FACTS

In March of 2004, Cerda pled no contest to being an accessory after the fact to shooting at an occupied motor vehicle. (Pen. Code, §§ 32, 246.) The court placed him on felony probation for five years on the conditions, among others, that he abstain from alcoholic beverages, not associate with gang members and not wear, display, use or possess any clothing indicating gang association or membership.

On June 2004, the court found Cerda to be in violation of his probation by failing to report to his probation officer and failing to provide a urine sample. Probation was reinstated on condition that he serve a brief term in jail. Cerda was released from jail on June 25, 2004.

On the evening of June 26, 2004, Detective Scott Casey of the Lompoc Police Department was working at the Lompoc Valley Flower Festival. Casey was familiar with the gangs in Lompoc and knew Cerda. Cerda had admitted to Casey that he is a member of the VLP gang, and is known as "Riddler" or "Mr. Riddler."

At about 7:00 p.m., Casey saw Cerda in the festival's parking lot. Cerda was walking and conversing with Louis Parra, another member of the VLP gang. Casey stopped Cerda. Cerda denied he was associating with Parra, and Casey allowed Cerda to enter the festival.

Casey also entered the festival where he spoke with probation officers. A few minutes later, a probation officer brought Cerda to the police command post. The probation officer had smelled alcohol on Cerda's breath. Cerda refused to cooperate in giving a breath or urine sample. He was taken into custody. Cerda was wearing light tan or cream colored baggy pants and a dark blue or black plaid shirt.

Cerda's probation officer submitted a probation violation report. Under "Reasons Why Defendant Is In Violation Of Probation," the report listed: "[T]he defendant was associating with a known gang member, . . . the defendant failed to provide a urine sample," and "the defendant had been drinking."

Under "Additional Information," the report set forth the circumstances surrounding Cerda's arrest on June 26, 2004, including that Cerda "was dressed in typical gang fashion with oversized pants and large plaid shirt. His haircut of choice appears to be a shaved head. In his pocket he had a black or dark blue bandana

At the hearing on the alleged violations of probation, Cerda's counsel conceded that Cerda had used alcohol and that he "didn't particularly want the probation officer to know about that." Cerda's counsel also argued that Cerda suffers from schizophrenia, and because he was just released from jail the day before, he was not on his full dosage of medication. Counsel suggested a short jail term and reinstatement of probation.

The court stated that it could not find Cerda in violation of probation for associating with a gang member because the probation order was defective. The court believed the cases require the order to be expressly limited to gang members known to the defendant. The court found Cerda in violation of probation for drinking and wearing gang clothing.

In considering the appropriate punishment, the court stated it was concerned about a series of cases involving gang related activities. The court said it fears someone in Lompoc will get killed because of gangs. The court rejected defense counsel's argument that Cerda should not be severely punished just for drinking. The court stated Cerda's punishment would not be based on drinking, but on repeated violations of probation. The court pointed out that the first violation occurred shortly after Cerda was placed on probation, and the second violation occurred shortly after being released from custody on the first violation. The court also found Cerda lied to the probation officer and the court when he said he did not know Parra was in a gang. The court sentenced Cerda to the middle term of two years in prison.

Cerda moved for reconsideration on the ground that the probation violation report did not list gang clothing as a reason why he was in violation. The court found Cerda had sufficient notice in that the report mentioned gang clothing under "Additional Information." The court reiterated that Cerda's two-year sentence was based on "his continued conduct and total disregard of court orders and probationary terms . . . ."

DISCUSSION

I

Cerda contends the trial court erred in considering his gang membership.

Cerda's contention is based on the trial court's statement that it could not find Cerda in violation of probation for associating with a gang member. Indeed, the trial court did not find Cerda in violation for associating with a gang member. The trial court considered Cerda's gang membership only in assessing the appropriate penalty.

Cerda argues the trial court cannot find no violation and use the same facts to send him to prison. But the court did not make a factual finding that Cerda was not a gang member or associating with one. The court only found that the probation condition prohibiting gang association was defective. The court could properly consider gang membership in assessing the appropriate punishment.

II

Cerda contends he was not given notice he was being charged with violating probation for wearing gang clothing. He also contends there was no proof that the clothing he was wearing was gang related.

But even assuming the trial court erred in finding Cerda violated probation for wearing gang clothing, the error was harmless. The trial court also found Cerda in violation of probation for drinking, a finding Cerda does not challenge. Moreover, the trial court made it clear that it was not imposing a two-year prison term because Cerda was drinking or wearing gang clothing. Instead, the court made it clear it was imposing a prison term because of a concern for public safety. It is manifest Cerda was not taking his probation seriously. He was found in violation twice within a few months of being placed on probation. He violated probation the second time within hours of being released from a jail term for the first violation. It is apparent that a term in county jail failed to impress Cerda. Cerda has not shown a reasonable probability he would have obtained a better result in the absence of the alleged error. (People v. Watson (1956) 46 Cal.2d 818, 836.)

Similarly, Cerda's argument that the trial court erred in using its subjective belief that Cerda committed perjury is unavailing. (Citing People v. Howard (1993) 17 Cal.App.4th 999, 1004 ["[W]hen imposing an aggravated sentence because of perjury at trial, the sentencing judge is constitutionally required to make on-the-record findings encompassing all the elements of a perjury violation."]) The court's statements show its chief concerns were public safety and Cerda's repeated violations of probation, not perjury. The court did not even mention perjury in reiterating Cerda's prison sentence at the hearing on Cerda's motion for reconsideration. The alleged error was harmless by any standard.

The judgment (order) is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

James F. Iwasko, Judge

Superior Court County of Santa Barbara

______________________________

James S. Egar, Public Defender, Raimundo Montes De Oca, Deputy Public Defender for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Russell A. Lehman, Deputy Attorney General, for Plaintiff and Respondent.