Filed 6/30/16 P. v. Rodriguez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

Plaintiff and Respondent,

v.

CRISTINA ZAMBRANO RODRIGUEZ,

Defendant and Appellant.

 H042534

 (Monterey County

 Super. Ct. No. SS150810A)

Defendant Cristina Zambrano Rodriguez led police on a two-county high speed 

chase on U.S. Highway 101 and through the streets of Salinas. She pleaded no contest to 

evading a peace officer. The trial court suspended imposition of sentence and granted a 

three-year term of probation. The trial court imposed two probation conditions, among 

others, requiring that Rodriguez: (1) not have access to, use, or possess any police 

scanner or surveillance equipment; and (2) not obtain any new tattoos.

Rodriguez challenges the first condition as unconstitutionally vague and overbroad 

on the ground that it fails to provide her with adequate notice of what devices are 

prohibited. She challenges the second condition as overbroad in violation of her 

constitutional rights to freedom of expression and association. The Attorney General 

concedes that both conditions should be modified and requests modifications to cure 
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them. We will accept the Attorney General’s concessions and modify the conditions as 

requested.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts of the Offense1

On May 17, 2015, Gilroy police officers engaged Rodriguez in a high speed chase

at 80 to 95 miles per hour on southbound U.S. Highway 101. Monterey County Highway 

Patrol officers joined the pursuit. When she reached Salinas, Rodriguez exited the 

highway and drove on the wrong side of the road in a continued attempt to evade police. 

After several turns leading into a residential area, Rodriguez pulled into an apartment 

complex and stopped the car. She and her passenger jumped out and attempted to run 

away. Salinas police officers arrested both parties.

A records check showed the car had been reported stolen out of Bakersfield. 

Police determined Rodriguez and her passenger also had been involved in a hit and run 

while driving the same vehicle in Santa Clara County. A search of the car yielded two 

bindles of methamphetamine weighing a total of two grams.

B. Procedural Background

The prosecution charged Rodriguez by felony complaint with four counts: Count 

One—Evading a peace officer in a willful disregard for safety (Veh. Code, § 2800.2, 

subd. (a)); Count Two—Evading a peace officer in a direction opposite to traffic (Veh. 

Code, § 2800.4); Count Three—Resisting arrest (Pen. Code, § 148, subd. (a)(1)); and 

Count Four—Possession of a controlled substance (Health & Saf. Code, § 11377, subd.

(a)). 

The parties reached a plea agreement whereby Rodriguez pleaded no contest to 

Count One in exchange for felony probation and dismissal of the remaining counts. The 

 

1 Our statement of the facts is based on the probation report.
3

trial court suspended imposition of sentence and granted a three-year period of probation, 

including the condition that Rodriguez serve 210 days in county jail. 

Among other probation conditions, the court imposed two conditions requiring 

that Rodriguez: (1) “Not have access to, use, or possess any police scanner device or 

surveillance equipment on [her] person, vehicle, place of residence, or personal effects,” 

and (2) “[N]ot obtain any new tattooing upon [her] person while on probation 

supervision” and “permit photographing of any tattoos on [her] person by law 

enforcement.” Rodriguez objected to these and several other conditions on the ground 

that they lacked any nexus to the offense. The trial court overruled the objection and 

found the conditions reasonably related to Rodriguez’s future criminality. The trial court 

noted Rodriguez had admitted to her probation officer that she associated with Sureño 

gang members and was a “validated gang member” in Santa Clara County.

II. DISCUSSION

A. Prohibition on Use or Possession of a Police Scanner or Surveillance Equipment

Rodriguez challenges the probation condition prohibiting her from using, 

possessing, or having access to “any police scanner device or surveillance equipment” as 

unconstitutionally vague and overbroad. She contends this language fails to provide her 

with adequate notice of what items or devices are prohibited. The Attorney General 

responds that the condition would be valid if modified to clarify what types of devices are 

prohibited. Rodriguez filed no reply brief addressing or opposing the requested 

modification.

This court recently considered a similar condition in People v. Contreras (2015) 

237 Cal.App.4th 868 (Contreras). We found the condition vague and overbroad because

“[t]he rapid changes and innovations in technology, particularly those involving tablet 

computers, smart phones, digital cameras, and other electronic devices, as well as the 

‘apps’ or applications created for such devices, make it difficult to formulate a condition 
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that encompasses all of the possible devices that could be used to monitor law 

enforcement and probation activities.” (Id. at p. 888.) We concluded the defect could be 

cured by “listing ‘police scanners’ and ‘surveillance equipment’ as examples of 

prohibited items, and then describing the functions of the prohibited items or devices the 

trial court sought to curtail.” (Ibid.) 

In light of Contreras, the Attorney General requests that we modify the condition 

to require that Rodriguez not have access to, use, or possess any device which enables 

monitoring of law enforcement or probation officers. The Attorney General also agrees 

with Contreras that the language requiring Rodriguez not to possess the prohibited 

devices on her “person, vehicle, place of residence, or personal effects” is unnecessary. 

We accept the Attorney General’s requests, and we will modify the condition consistent 

with Contreras.

B. Prohibition on Obtaining New Tattoos

Rodriguez challenges the probation condition prohibiting her from obtaining new 

tattoos as overbroad in violation of her constitutional rights to freedom of expression and 

association.2 The Attorney General contends the condition would be valid if modified to 

require Rodriguez to seek permission from her probation officer before obtaining new 

tattoos.

“Generally, ‘[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 . . . .” [Citation.]’ [Citation.] This test is conjunctive—all 

three prongs must be satisfied before a reviewing court will invalidate a probation term.” 

(People v. Olguin (2008) 45 Cal.4th 375, 379, quoting People v. Lent (1975) 15 Cal.3d 

481, 486.) Furthermore, “[a] probation condition that imposes limitations on a person’s 

 

2 Rodriguez does not challenge that part of the condition requiring her to permit 

law enforcement to photograph her tattoos.
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constitutional rights must closely tailor those limitations to the purpose of the condition 

to avoid being invalidated as unconstitutionally overbroad.” (In re Sheena K. (2007)

40 Cal.4th 875, 890.) “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 impossible, and that practical necessity will justify some 

infringement.” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)

Noting defendant’s admitted gang associations, the trial court ruled that the 

prohibition on new tattoos was reasonably related to preventing future criminality. 

Rodriguez acknowledges that some tattoos could be related to gang activity, but she 

points out that many kinds of tattoos may be completely innocuous. She contends the 

condition should be narrowed to prohibit only tattoos related to gang affiliation. The 

Attorney General argues that requiring permission from the probation officer before 

obtaining new tattoos would be more appropriate since Rodriguez could inadvertently 

obtain a tattoo with surreptitious gang connotations.

We agree with the Attorney General. Prevention of future criminality would be 

best served if the probation officer can exercise his or her informed judgment in 

determining whether a given tattoo is innocuous. Accordingly, we will modify the 

condition to require written permission from the probation officer. With this 

modification, we conclude the condition does not impermissibly infringe upon

defendant’s constitutional rights.

III. DISPOSITION

The probation condition prohibiting police scanners and surveillance equipment is 

modified as follows: “The probationer shall not have access to, use, or possess any 

device such as police scanners or surveillance equipment that could be used to 

electronically monitor law enforcement or probation activities.” The probation condition 

prohibiting new tattoos is modified as follows: “The probationer shall not obtain any 
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new tattooing upon her person while on probation supervision without the prior written 

permission of her probation officer, and she shall permit photographing of any tattoos on 

her person by law enforcement.” As so modified, the judgment is affirmed.
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___________________________________________

WALSH, J. *

WE CONCUR:

__________________________

RUSHING, P.J.

__________________________

PREMO, J.

People v. Rodriguez

H042534

 

*

Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.