Calif. court modifies probation rule on gang-related tattoos

Friday, October 19, 2012

Probation rules must be changed so that only those probationers who obtain a tattoo that they know is gang-related are punished, a California appeals court has ruled.

Without this requirement, a defendant could be punished for a new tattoo that he didn’t know involved a symbol adopted by a gang.

Adelso Perez Huerta got into trouble after a fight with another man whose dog bit Huerta’s son. After the other man hit Huerta with a baseball bat, Huerta grabbed the bat and pummeled the man with it into unconsciousness. Huerta later pleaded guilty to felony assault by means of force likely to produce great bodily harm and another misdemeanor violation.

As part of his sentencing, a trial court gave him three years of probation with several restrictions. One of the restrictions read:

“Do not obtain new gang-related tattooing upon your person while on probation supervision. You shall permit photographing of any tattoos on your person by law enforcement.”

Huerta challenged many of his probation restrictions on appeal, including the one on gang tattoos. He contended the restriction violated his First Amendment rights to expression and association. The Court of Appeal of California, 6th Appellate District, agreed the restriction was too broad in its Oct. 15 decision in People v. Huerta.

The modified restriction now instructs probationers that they may not:

“Obtain any new tattoo upon your person that you know, or reasonably should know, is gang related while on probation supervision.  You shall permit photographing of any tattoos on your person by law enforcement.”

The appeals court cited an earlier California appeals court decision pointing out the ban on gang-related dress could be applied to person who didn’t know he was wearing gang clothing.

The court in the new ruling adopted this reasoning for gang-related tattoos — a wise decision, as it would be patently unfair to punish a probationer for obtaining a tattoo that he or she did not know was a gang symbol. Sometimes gangs appropriate common symbols or items, such as crosses or pieces of clothing of a certain color.

This week’s opinion did not say whether Huerta was a gang member.

 

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