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Filed 10/24/14 P. v. Fowler 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

GLEN FOWLER,

Defendant and Appellant.

C075425

(Super. Ct. No. 13F07676)

Defendant Glen Fowler entered a negotiated no contest plea to possession of 

marijuana for sale in exchange for probation and 120 days in county jail. The remaining 

counts (possession of concentrated cannabis and misdemeanor driving without a license) 

were dismissed in the interest of justice and in view of the plea. The trial court 

suspended imposition of sentence and granted formal probation for a term of five years 

subject to certain terms and conditions, including gang-related conditions.

On appeal, defendant challenges the gang-related conditions as unconstitutionally 

overbroad in that they are not supported by the evidence or reasonably related to 

defendant’s crime or future criminality. We reject defendant’s contention.
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Prior to defendant entering his plea, he was provided a list of proposed probation 

conditions. Defense counsel objected to the proposed gang-related conditions as lacking 

any nexus to defendant or his crimes, disputing that he admitted he was a gang member.1 

Defendant agreed to enter his plea and to be sentenced immediately thereafter. After 

defendant entered his plea, defense counsel renewed the objection to the gang-related 

conditions.

The prosecutor responded: “At the time the defendant was arrested, he was on 

juvenile probation for selling cocaine and possession of a weapon. His probation 

conditions were that he was not to associate with gang members and not to possess any 

dangerous weapons. When he was arrested for this crime, he admitted he was a validated 

29th Street Crip. His gang validation was confirmed.

“Additionally, when the officers were investigating this case, they looked through 

pictures -- through the pictures on the defendant’s cell phone and found over fifty 

pictures of the defendant posing with large quantities of marijuana, cash.

“Additionally, [there were] various pictures with the defendant posing while using 

hands to make gang signals with cash and marijuana.

“So I think that his gang activities involved the sale of marijuana. So there is a 

nexus for these conditions.” (Italics added.)

Defense counsel argued that the undated photos showed someone, but not 

defendant, with guns and throwing gang signs. Defense counsel did not respond to the 

prosecutor’s representation that defendant had been on juvenile probation with gangrelated conditions or that defendant had been validated as a gang member.

 

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 The proposed gang-related conditions provided: “7. Defendant shall not knowingly 

associate with persons you know to be or whom probation informs you are gang 

members; [¶] 8. Defendant shall not knowingly be in places frequented by persons 

he/she knows to be or where probation tells him/her that gang members frequent[.]”
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With respect to the gang-related conditions, the court stated that when referral to 

probation has been waived, it would usually delete the gang-related conditions, but “in 

this case there is enough on the record and enough of a nexus to impos[e] [the gang 

conditions].”

Defendant contends there is not any evidence of gang connections to support the 

gang-related conditions, “only the argument of the prosecutor upon which the trial court 

relied.”

“Trial courts have broad discretion to set conditions of probation in order to ‘foster 

rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.’ 

[Citations.] If it serves these dual purposes, a probation condition may impinge upon a 

constitutional right otherwise enjoyed by the probationer, who is ‘not entitled to the same 

degree of constitutional protection as other citizens.’ [Citation.]” (People v. Lopez 

(1998) 66 Cal.App.4th 615, 624 (Lopez).)

“The classic formulation of a trial court’s power to impose probation conditions is 

taken from People v. Lent (1975) 15 Cal.3d 481, 486 . . . , where our Supreme Court 

stated: ‘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.]’ ” (People v. Balestra (1999) 

76 Cal.App.4th 57, 65, fn. omitted.)

Lopez did not find any abuse of discretion when the trial court imposed gangrelated conditions even though there was not any evidence the underlying offense was 

gang related. (Lopez, supra, 66 Cal.App.4th at pp. 622-626.) The conditions prohibited 

the defendant from being involved in a gang, associating with gang members, wearing or 

possessing any item of gang clothing, or displaying markings of gang significance. (Id. 

at p. 622.) “Because ‘[a]ssociation with gang members is the first step to involvement in 

gang activity,’ such conditions have been found to be ‘reasonably designed to prevent 
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future criminal behavior.’ [Citation.]” (Id. at p. 624.) Gang-related conditions also serve 

a rehabilitative purpose, even where the underlying offense was not gang related. (Id. at 

p. 625.) Supporting the imposition of gang-related conditions, the probation report 

reflected that the defendant admitted membership in the Norteño gang, which had a 

history of overt criminal behavior, and it listed the defendant’s lengthy history of juvenile 

offenses and misdemeanor adult crimes. (Id. at p. 626.) Lopez held that the defendant’s 

“age, gang affiliation, and consistent and increasing pattern of criminal behavior 

warranted a conclusion by the trial court that [the defendant’s] disassociation from gangconnected activities was an essential element of any probationary effort at rehabilitation 

because it would insulate him from a source of temptation to continue to pursue a 

criminal lifestyle.” (Ibid.)

The rules for admissibility of evidence at trial do not govern at a sentencing 

hearing. Hearsay is admissible at a sentencing hearing provided the hearing procedures 

are not “fundamentally unfair.” (People v. Peterson (1973) 9 Cal.3d 717, 725-726; see 

People v. Arbuckle (1978) 22 Cal.3d 749, 754-755 [reliability is “key issue in 

determining fundamental fairness”].) Use of a probation report’s hearsay statements that 

contain sufficient indicia of reliability does not violate due process. (People v. Otto

(2001) 26 Cal.4th 200, 210-211.)

Here, even though a probation report was waived and defendant was immediately 

sentenced, defendant knew of the proposed probation conditions, including the gangrelated conditions, before he entered his plea. Defense counsel objected to the gangrelated conditions, arguing that defendant disputed he had admitted to officers that he was 

a gang member and challenging the photos as not depicting defendant throwing gang 

signs. Defense counsel did not object on hearsay grounds to the prosecutor’s 

representation that defendant had been on juvenile probation with gang-related conditions 

when he was arrested for the current offense or that defendant had been validated as a 

gang member. Defendant had the opportunity to and did contradict two of the 
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prosecutor’s statements. Defendant could have contradicted the prosecutor’s two other 

statements but did not. Thus, defendant has not shown any fundamental unfairness in the 

procedure, and the trial court did not err in relying upon the prosecutor’s undisputed 

statements. Sufficient evidence supported the gang-related conditions, which were 

related to defendant’s future criminality.

DISPOSITION

The judgment is affirmed.

 RAYE , P. J.

We concur:

 BLEASE , J.

 MAURO , J.