Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. SCD221655 Kathleen M. Lewis, Judge.
AARON, J.
I.
INTRODUCTION
Defendant Daniel U. Acedo appeals the terms of his probation, imposed after Acedo pleaded guilty to false imprisonment. Acedo's formal probation includes a condition that he "not use force, threats, or violence on another person." Acedo contends that this condition is unconstitutionally vague and overbroad "because it fails to provide adequate notice of what is allowed and what is prohibited in the event appellant must exercise his constitutional right of self-defense" and "makes no exception for self-defense." Acedo requests that this court either strike or modify the condition.
The People concede that the probation condition appears to be overbroad in that it makes no exception for self-defense. The People suggest that this court modify the condition "to avoid any interpretation of the condition that is overly broad." We therefore modify Acedo's probation condition to limit its reach to conduct and speech that is unlawful.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Because Acedo pleaded guilty and his only challenge is to the terms of probation, we provide only a brief description of the facts underlying the case.
On June 29, 2009, Wendy A., a juvenile, visited Acedo at his home. Acedo lived in a garage behind a home that his uncle owned. Wendy and Acedo drank beer. Acedo took out a pistol and told Wendy that she could shoot it. Wendy shot the gun at the floor. Acedo grabbed her hand as she dropped the gun and told her that he wanted her to shoot him or slap him. Wendy told Acedo that she did not want to do anything to him. Acedo became upset and slapped Wendy across her face. Acedo then grabbed Wendy's arm and pushed her onto the bed. When Wendy told Acedo that she wanted to leave, he prevented her from leaving the garage. He grabbed her and slapped her again. Acedo took Wendy's glasses off of her face and broke them, and tore a gold necklace from her neck.
Wendy tried to leave through a window, but Acedo stopped her. Acedo eventually led Wendy outside but continued to hold onto her. Acedo ultimately told Wendy that she could leave if she wanted to go.
Wendy ran to a neighbor and told him that she needed help because Acedo wanted to hit her. The witness saw Acedo trying to hide behind a bush nearby. Wendy called police. When police officers arrived they located Acedo, and Wendy positively identified him at a curbside lineup. The officers placed Acedo under arrest.
The San Diego County District Attorney charged Acedo by criminal complaint with false imprisonment by violence, menace, fraud and deceit (Pen. Code, §§ 236, 237, subd. (a)) and misdemeanor sexual battery (§ 243.4, subd. (e)(1)).
On October 22, 2009, Acedo pleaded guilty to the false imprisonment charge pursuant to a negotiated plea agreement. The court sentenced him to three years of formal probation and set conditions of probation.
On November 20, 2009, Acedo filed a notice of appeal and a request for a certificate of probable cause. The trial court granted the certificate of probable cause on November 23, 2009.
On October 9, 2010, this court requested supplemental briefing from the parties to address the following questions:
"(1) Respondent suggests that any constitutional infirmity in the probation condition that appellant 'not use force, threats, or violence on another person' may be remedied by adding the phrase, 'except in lawful self-defense' to the condition. Is the probation condition overbroad for the additional reason that it fails to permit the defendant to engage in the lawful defense of others? If so, should the probation condition be modified by adding the phrase, 'except in lawful self-defense or lawful defense of others'?
"(2) Does the relevant probation condition's prohibition against all 'threats' infringe on defendant's First Amendment rights? If so, how might the probation condition be modified to satisfy any First Amendment concerns?"
The parties submitted supplemental letter briefs, which this court has read and considered.
III.
DISCUSSION
Acedo contends that probation condition 10.c., which prohibits him from "us[ing] force, threats, or violence on another person, " is overbroad because it improperly limits his constitutional right of self-defense and/or is vague because it does not give him sufficient notice of what he is permitted to do in a situation that calls for self-defense. In supplemental briefing, Acedo further argues that "uttering a threat of violence in the context of [his] exercise of his right of self-defense would not be... a true threat, " and, therefore, that a threat made in this context is protected by the First Amendment.
Generally, a probation condition will be upheld 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....' " (People v. Lent (1975) 15 Cal.3d 481, 486.) In addition, "[a] probation condition that imposes limitations on a person's 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 (Sheena K.).) Further, "[a] probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated, ' if it is to withstand a challenge on the ground of vagueness. [Citation.]" (Ibid.)
A probation condition that is not " 'sufficiently narrowly drawn' " may be modified and affirmed as modified. (People v. Lopez (1998) 66 Cal.App.4th 615, 629; see also People v. Garcia (1993) 19 Cal.App.4th 97, 102.)
Although Acedo did not object to the probation conditions at the time the trial court imposed them, we may nevertheless consider his contentions to the extent that they present constitutional challenges involving questions of law. (See Sheena K., supra, 40 Cal.4th at p. 888 [determining that defendant's claim that probation condition was unconstitutionally vague and overbroad was not forfeited by failure to raise it in juvenile court where asserted error is pure question of law and easily remediable on appeal by modification].)
The People essentially concede that the challenged probation condition is overbroad to the extent that it does not allow Acedo to engage in self-defense or the lawful defense of others, both of which are permitted by state law and protected by the California Constitution (see Cal. Const., art. I, § 1 [among inalienable rights are "enjoying and defending life and liberty" and "pursuing and obtaining safety, happiness, and privacy"]; see also Pen. Code, § 693 [permitting resistance sufficient to prevent an offense]). The People suggest that this court remedy the overbreadth by modifying the condition to state that Acedo may not "use force, threats, or violence on another person except in lawful self-defense or lawful defense of others."
We accept the People's concession that probation condition 10.c. is overbroad in that it does not allow Acedo to engage in lawful self-defense or the lawful defense of others. With respect to the probation condition's prohibition against "threats, " the People do not concede that the condition is overbroad, and instead argue that the phrase "threats" in the probation condition is intended to cover "true threats, " which are not protected by the First Amendment. However, it would appear that the probation condition, by its terms, is not limited to the prohibition of criminal or true threats. We therefore conclude that the probation condition should be modified to address the constitutional concerns raised by this appeal by inserting the word "unlawful" before "force, " so that the condition reads: "Do not use unlawful force, threats, or violence on another person." As so modified, the probation condition will permit Acedo to use force, threats, or violence in lawful self-defense or defense of others.
IV.
DISPOSITION
Acedo's probation condition 10.c. is modified to read: "Do not use unlawful force, threats, or violence on another person." In all other respects, the probation order is affirmed. The trial court shall forward a copy of the modified probation order to the probation authorities.
WE CONCUR: McCONNELL, P. J., NARES, J.