Calif. court agrees gang-tattoo probation rule not clear enough

Wednesday, September 15, 2010

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A probation restriction that prohibited an admitted gang member from
obtaining new gang tattoos was too vague, a California appeals court has ruled.
The court reasoned that the restriction could prohibit the defendant from
obtaining a new tattoo that he didn’t know was a gang symbol.

Esequiel Barrajas, 27, pleaded no-contest to a felony count of possessing
crystal meth. The police pulled him over because he was riding his bicycle down
the wrong side of the road. When they searched him, they found a small amount of
crystal meth.

When interrogated, Barrajas admitted he was a member of the Varrio Sureno
Town gang. VST gang members identify with the number 13 and the color blue.
According to court documents, Barrajas’ tattoos included a “Mexican calendar,”
an eagle and “VST” behind his left ear. Prosecutors tacked on a vandalism charge
after Barrajas peeled off a large amount of blue paint from a table in an
interview cell.

Santa Clara Couny Superior Court imposed several probation conditions,
including one that prohibited Barrajas from possessing gang paraphernalia, such
as badges, caps, jackets, bandannas or other items associated with criminal
street gangs. The court also ordered that he “not obtain any new tattoos that
identify you as a member of a criminal street gang.”

On appeal, Barrajas challenged both the tattoo and paraphernalia probation
restrictions. The Court of Appeals of California, 6th Appellate District, agreed
with him in its Sept. 10 opinion in People v.
that the tattoo restriction was too vague.

The appeals court cited previous decisions in which it had ruled that
probation conditions must include a knowledge requirement so that defendants are
not criminally prosecuted and imprisoned for gang-related involvement or
expression of which they aren’t aware.

The appeals court modified the tattoo condition to read: “Defendant shall not
obtain any new tattoos that he knows are gang-related or that his probation
officer informs him to be gang-related.”

Though the appeals court agreed with the defendant’s vagueness challenge to
the tattoo condition, it disagreed with his constitutional challenge concerning
paraphernalia. Barrajas had argued that the paraphernalia condition was too
broad because it could apply to clothing or other items not related to his gang.
He said many gang symbols are a particular color and a color restriction could
prohibit him from wearing many kinds of clothing. He argued that he should be
limited from wearing only items associated with VST.

However, the appeals court deferred to the prosecution and its attempt to
reduce gang-on-gang violence.

“In our view, the paraphernalia condition is closely tailored to its purpose
of enhancing defendant’s rehabilitation by requiring him to avoid all gang
associations,” the court wrote. “Consequently, it was not required to be limited
to one gang, one gang color, or one set of insignia.”

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