Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Thomas J. Ryan, District Judge.
The opinion of the court was delivered by: Burdick, Justice
Judgment entered upon guilty plea to recruiting criminal gang member, affirmed.
Simona Manzanares appeals from the judgment entered following her guilty plea under a conditional plea agreement. She pled guilty to recruiting a criminal gang member under I.C. § 18-8504(1)(a) in exchange for the dismissal of a charge for providing a firearm to a criminal gang member under I.C. § 18-8505. On appeal, Manzanares argues that: (1) I.C. § 18-8504(1)(a) (the "Recruiting Provision") is unconstitutionally overbroad on its face and as applied for encroaching on the First Amendment right to free association; (2) I.C. § 18-8505 (the "Firearm Provision") is unconstitutionally overbroad as applied for punishing her expressive conduct, unconstitutionally vague on its face and as applied for failing to adequately define "gang member," and unconstitutional under the Second Amendment of the United States Constitution and Article I, Section 11 of the Idaho Constitution for prohibiting a class of persons from keeping or bearing arms; (3) her conviction violates the ex post facto clauses of the United States and Idaho constitutions; (4) the district court erred in failing to dismiss the information based on the information's failure to enumerate all elements of the charged offenses; and (5) the district court erred in failing to dismiss the information based on insufficient evidence offered at the preliminary hearing.
I. FACTUAL AND PROCEDURAL BACKGROUND
The legislature adopted the Idaho Criminal Gang Enforcement Act ("ICGEA"), I.C. §§ 18-8501 et seq., effective March 24, 2006. 2006 Idaho Sess. Laws, ch. 184, § 1, pp. 582-85.*fn1
On February 27, 2007, Manzanares was charged with committing two felonies under the ICGEA: (1) recruiting a criminal gang member in violation of I.C. § 18-8504(1)(a); and (2) supplying a firearm to a gang member in violation of I.C. § 18-8505.
Under the Recruiting Provision, "[a] person commits the offense of recruiting criminal gang members by . . . [k]nowingly soliciting, inviting, encouraging or otherwise causing a person to actively participate in a criminal gang." Idaho Code § 18-8504(1)(a).*fn2 Count I of the Information (the "Recruiting Charge"), alleged that Manzanares, from about September 21, 2006, until about February 2, 2007, "did knowingly solicit, invite, encourage or otherwise cause a person to actively participate in a criminal gang, The East Side Locas" in violation of the Recruiting Provision.
Under the Firearm Provision, "[a] person commits the offense of supplying firearms to a criminal gang if the person knows an individual is a gang member and supplies, sells or gives possession or control of any firearm to that gang member." Idaho Code § 18-8505(1).*fn3 Count II of the Information (the "Firearm Charge"), alleged that Manzanares, on or about October 13, 2006, in Canyon County "did knowingly supply, sell, or give possession or control of a firearm to Jackie Trinidad who the defendant knew to be a criminal gang member" in violation of the Firearm Provision.
Manzanares waived her preliminary hearing, and on March 21, 2007, she was bound over to the district court. The State filed the Information on March 22, 2007. Manzanares moved to dismiss both charges, arguing that the Recruiting Provision violates both the First Amendment of the United States Constitution and Article I, sections 9 and 10 of the Idaho Constitution and is unconstitutionally vague. She also argued that the Firearm Provision violates the Second Amendment of the United States Constitution and Article I, Section 11 of the Idaho Constitution. Finally, she argued that the Recruiting Charge failed to provide adequate notice of the alleged conduct believed to be criminal. Manzanares filed a Supplementary Motion to Dismiss, arguing that the statutory definition of "criminal gang member" in I.C. § 18-8502(2) is unconstitutionally vague to the extent that it applies to the Recruiting Provision and the Firearm Provision, both statutes are unconstitutionally overbroad, both charges fail to provide adequate notice of the alleged conduct believed to be criminal, and the Firearm Provision is unconstitutionally vague.
On July 27, 2007, the district court held a hearing to consider Manzanares's motion to dismiss. On August 7, 2007, the district court conditionally granted the motion to dismiss the Recruiting Charge due to the vagueness of the charging language and gave the State seven days to amend the Information to include the name of the person Manzanares allegedly recruited. The district court denied Manzanares's motion to dismiss as to all other grounds raised by Manzanares.
The State submitted the Amended Information on August 7, 2007. The Recruiting Charge was amended to name Jackie Trinidad as the person Manzanares allegedly recruited and to change the date of the alleged recruiting (from April 1, 2006, to February 27, 2007). The Firearm Charge was amended to change the date on which Manzanares allegedly supplied a firearm to Trinidad (from May 1, 2006, to May 15, 2006).
On August 9, 2007, the parties submitted a Stipulation to Remand Proceeding for Preliminary Hearing, because the Amended Information included information not previously disclosed to the Defendant: that Trinidad was the person allegedly recruited by Manzanares. The district court remanded the case to the magistrate judge for a preliminary hearing, which was held on August 30, 2007
At the preliminary hearing, the State called Corporal Joey Hoadley of the Caldwell Police Department to testify. Corporal Hoadley testified that he has had contact with Manzanares on numerous occasions and that she admitted to him that she is a member of the East Side Locos and that she is the leader of the female branch of the East Side Locos, called the East Side Locas. Corporal Hoadley then testified to specific encounters he had with Manzanares, setting forth various facts associating her with the East Side Locos and East Side Locas.
According to Corporal Hoadley, State's Exhibit 1, which is a photograph obtained from a vehicle in which Manzanares was riding with a gang member who was arrested, depicts Jackie Trinidad at Manzanares's home, wearing gang attire and holding a firearm with Manzanares standing behind her and flashing the common gang sign for the East Side Locos or East Side Locas. Corporal Hoadley also testified as to State's Exhibit 2, which he says is a copy of Manzanares's MySpace webpage and includes pictures of Manzanares, pictures of other members of the East Side Locos and East Side Locas and numerous other gang references.
Corporal Hoadley testified that on December 5, 2006, Manzanares voluntarily spoke with him at the Caldwell Police Department. She admitted to being the leader of the East Side Locas. She said that membership in the East Side Locas had dwindled from approximately twenty members initially to less than ten members as people moved, got married, became pregnant, and were incarcerated. She explained that to become a member of the gang one must go through an initiation process called the "jump in", which involves being battered by several gang members for a specified amount of time. She said that the gang funds itself by selling illegal narcotics, by "house shopping" (burglarizing a house), and by "car shopping" (burglarizing a car).
Finally, Corporal Hoadley testified on State's Exhibit 3, which included an audio recording from Manzanares's MySpace webpage, which he identified as the voice of Manzanares. He testified that based on his expertise on gangs, the language from the audio recording ("For all your Surenos out there keep bangin', homies.") "is encouraging people to continue in gang activity, committing crimes, committing violence."
The State also called Jackie Trinidad to testify at the preliminary hearing. Trinidad testified that on December 31, 2005, she attended a New Year's Eve party at Manzanares' sister's house. She testified that she and others were drinking alcohol at the party and that one of her friends asked her if she wanted to get jumped in. She testified that Manzanares was at the party and that Manzanares did not say anything about jumping her in but that Manzanares did join others in hitting her as part of the jumping in. When asked what she does as a member of the East Side Locas, Trinidad said: "Not really anything, like we would just hang out, go to [Manzanares's] house, have barbecues."
Trinidad testified that the reason she attended the 2005-2006 New Year's Eve party (at which she was jumped in to the East Side Locas) was that her friend Maria wanted to go. Trinidad testified that she hardly knew Manzanares prior to that party and had not previously talked to Manzanares about the East Side gangs. She testified that Maria told her at the party that someone, maybe but not specifically Manzanares, did not want people coming over who were not "Eastsiders."
Trinidad also testified that at a barbecue at Manzanares's house in May 2006, she and Manzanares went to the garage because "that's where all the beer was", and while in the garage, Manzanares "showed [a gun] to me and like we decided to take pictures." Trinidad explained that the gun was wrapped up in a towel on a couch in the garage, Manzanares gave the gun to her, and they both decided to take the picture, which was submitted as State's Exhibit 1 (the photograph about which Corporeal Hoadley testified). Trinidad testified that in the photograph, she is holding a gun and wearing a jersey with the number 13, which she wore to show that she was a member of the gang, and Manzanares is "throwing up Eastside." Trinidad testified that Manzanares knew Trinidad was a gang member on the day of the barbecue and that this was an East Side barbecue. On cross examination, Trinidad testified that the photograph depicts the only time she ever handled the gun, and the only reason she handled it was for the purpose of taking the photograph.
Trinidad also testified that she knew Manzanares had a website and that she had listened to the audio message (State's Exhibit 3). She testified that Manzanares encouraged East Side members to go tagging, which involves spray-painting messages and symbols related to the East Side gangs in public places, but that "nobody really ever did anything" and "[o]nly the guys did [go tagging]."
At the conclusion of the preliminary hearing, the magistrate found that there was probable cause for both the Recruiting Charge and the Firearm Charge, explaining:
The jumping in is sufficient enough for the language of [the Recruiting Charge] that was testified to by Ms. Trinidad. With regard to the [Firearm Charge], once again, the photograph, the testimony indicates she . . . handed her the gun. Therefore, Jackie Trinidad did in fact, after becoming a gang member and known to Ms. Manzanares, have possession of a firearm.
The statute further provides, however, that a--it has to be a criminal gang, as defined by the statute, which was the issue the Court had. The definition of a criminal gang is set out in Idaho Code 18-8502, Subsection 1, and requires a whole number of elements, the first of which--all of which in the paragraph are met up until we get to the point of a further definition. It refers to paragraph 3 in that same code section, and paragraph 3 is the definition of pattern of criminal gang activity and requires language to qualify as a pattern of gang activity there could be two or more convictions or offenses, certain enumerated charges. However, Subsection 1 doesn't say it has to be convictions. And there is testimony before the Court that the defendant told the officer that they had been-- they engaged in certain activities, none of which are shown convictions or proven, but they are enumerated in 3(a) though.
And, as a result, I'm going to bind over since you can all brief this statute to death.
The magistrate filed an Order Binding Defendant Over to District Court.
On September 4, 2007, the State filed the Second Amended Information. In this final version of the information, the Recruiting Charge alleges that Manzanares recruited Trinidad sometime from April 1, 2006, to February 26, 2007, and the Firearm Charge alleges that Manzanares gave Trinidad possession of a firearm sometime from May 1 through 15, 2006.
Manzanares was arraigned on September 7, 2007. On December 17, 2007, Manzanares filed another motion to dismiss, arguing that the evidence offered at the preliminary hearing was insufficient to bind her over and reasserting her previous motion to dismiss. On January 22, 2008, the district court held a hearing on the motion to dismiss, and on February 8, 2008, the district court denied the motion, finding that there was substantial evidence upon which the magistrate could find probable cause as to both the Recruiting Charge and the Firearm Charge.
On June 27, 2008, Manzanares moved to dismiss in light of the United States Supreme Court decision in District of Columbia v. Heller, 554 U.S. 570 (2008). It does not appear that this motion was ever heard or decided.
On July 10, 2008, Manzanares entered into a conditional plea agreement. She agreed to enter an Alford plea*fn4 to the Recruiting Charge in exchange for dismissal of the Firearm Charge. Manzanares reserved her right to appeal "the issue of the constitutionality of the charge and statute, and such other matters that might appear in the record of this action." The district court accepted Manzanares's plea and dismissed the Firearm Charge. On August 28, 2008, following a two-day sentencing hearing, the district court imposed a ten-year unified sentence with two years fixed for the Recruiting Charge.
On September 11, 2008, the district court entered the Judgment and Commitment, and on September 25, 2008, Manzanares filed the Notice of Appeal to this Court.
The party challenging a statute on constitutional grounds bears the burden of establishing that the statute is unconstitutional and 'must overcome a strong presumption of validity.' Appellate courts are obligated to seek an interpretation of a statute that upholds its constitutionality.
A plea agreement is contractual in nature and must be measured by contract law standards. The interpretation of a contract's meaning and legal effect are questions of law to be decided by the Court if the terms of the contract are clear and unambiguous. The meaning of an unambiguous contract must be determined from the plain meaning of the contract's own words. Where a contract is determined to be ambiguous, interpretation of the contract is a question of fact that focuses on the intent of the parties. Whether the facts establish a violation of the contract is a question of law over which this Court exercises free review.
A. All issues Manzanares raises concerning the Firearm Charge are moot, because the Firearm Charge was dismissed.
Manzanares pled guilty to the Recruiting Charge in exchange for the dismissal of the Firearm Charge. The second issue Manzanares raises on appeal challenges the constitutionality of the Firearm Provision, and the fourth and fifth issues she raises on appeal, which challenge the information and the sufficiency of the evidence at the preliminary hearing, contain sub-issues specifically concerning the Firearm Charge. The State argues that these issues are moot, because the Firearm Charge was dismissed pursuant to the plea agreement. Manzanares argues that the claims are not moot, because if this Court holds in favor of Manzanares on one of the issues related to the Recruiting Charge, I.C.R. 11(a)(2) affords Manzanares the right to withdraw her guilty plea, in which case the State would be able to re-file the Firearm Charge.
Under the mootness doctrine:
This Court may dismiss an appeal when it appears that the case involves only a moot question. A case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. A case is moot if it presents no justiciable controversy and a judicial determination will have no practical effect upon the outcome.
Goodson v. Nez Perce Cnty. Bd. of Cnty. Comm'rs, 133 Idaho 851, 853, 993 P.2d 614, 616 (2000) (citations omitted).
Manzanares is correct that if we were to rule in her favor on the Recruiting Charge, she would be permitted to withdraw her guilty plea pursuant to I.C.R. 11(a)(2), and the State would be able to re-file the Firearm Charge. Under such circumstances, if we were to address the constitutionality of the Firearm Provision on this appeal, our ruling could affect the State's decision to re-file the Firearm Charge and could affect any resulting case. However, ruling on the Firearm Charge issues has no practical effect on this appeal and would be an impermissible advisory opinion. See State v. Barclay, 149 Idaho 6, 9, 232 P.3d 327, 330 (2010) ("In effect, the State is asking this Court to issue an advisory opinion in order to avoid the issue in future cases; an exercise this Court will not undertake."). Thus, we hold that all issues raised by Manzanares which concern the Firearm Charge were rendered moot when the Firearm Charge was dismissed.
Manzanares also argues that she specifically reserved the right to appeal these issues in the conditional plea agreement. However, parties cannot agree to confer jurisdiction on a court. State v. Urrabazo, 150 Idaho 158, 163, 244 P.3d 1244, 1249 (2010) ("subject matter jurisdiction can never be waived or consented to"). Thus, even if the conditional plea agreement purports to reserve these issues for appeal, we are nevertheless without jurisdiction to consider these issues.
B. We cannot reach Manzanares's ex post facto argument, because there was no adverse ruling on this issue below which could be reserved for appeal pursuant to I.C.R. 11(a) and because this issue is non-jurisdictional and does not involve fundamental error.
The third issue Manzanares raises on appeal is whether the Recruiting Charge is an ex post facto violation. We explained in Wheeler v. Idaho Department of Health and Welfare:
Ex post facto laws are prohibited by article I, section 9, clause 3 of the United States Constitution and by article I, section 16 of the Idaho Constitution. The ex post facto clauses prevent the enactment of 'any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed . . . .' Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 2716-17 111 L.Ed.2d 30, 39 (1990) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 70 L.Ed. 216, 217 (1925)).
The ICGEA became effective on March 24, 2006. 2006 Idaho Sess. Laws, ch. 184, § 1, p. 585. Even though the complaint, as well as each draft of the information, allege that Manzanares recruited a gang member on a date(s) subsequent to the ICGEA's effective date; the specific incident of recruiting which the State focused on at the preliminary hearing concerned a New Year's party on December 31, 2005--nearly three months prior to the ICGEA's effective date. Thus, Manzanares argues that her conviction violates the ex post facto clauses of the Idaho and United States constitutions, because the Recruiting Charge to which she pled guilty was based on her conduct at the New Year's party--prior to the enactment of the ICGEA.
"Ordinarily, a plea of guilty, if voluntarily and knowingly made, is conclusive as to the defendant's guilt and waives all non-jurisdictional defects in prior proceedings against the defendant. A defendant may preserve such defects or issues by entering a conditional guilty plea pursuant to I.C.R. 11(a)(2)." Hosey, 134 Idaho at 889, 11 P.3d at 1107 (citation and quotation omitted). Thus, Manzanares's ex post facto issue is properly before us on appeal only if either:
(1) her conditional plea agreement reserved the issue under I.C.R 11(a)(2); or (2) the issue is jurisdictional.
Manzanares's conditional plea agreement states that she reserves her right to appeal "the issue of the constitutionality of the charge and statute, and such other matters that might appear in the ...