Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino CountySuper.Ct.No. J211086, Jerry Walker, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Kelley Johnson, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Minor defendant Isaac B. challenges two of his probation conditions on the grounds they are unconstitutionally vague and over broad because the knowledge element is not specific enough. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged in a petition pursuant to Welfare and Institutions Code section 602, subdivision (a), with second degree robbery in violation of Penal Code section 211, together with a special allegation that he personally used a dangerous or deadly weapon, a wood post, in the commission of the offense. At a hearing on the petition held November 21, 2006, a cashier at a liquor store identified defendant as one of two individuals who entered the store, took approximately five T-shirts, and ran. The cashier chased them. During the chase, defendant stopped and grabbed a stick of wood from the street, telling the cashier, “I’m going to beat you, go back.” Defendant then hit the cashier with the stick. The cashier sustained a minor injury and could not continue the chase.
The surveillance system in the store recorded the robbery, and the cashier showed the recording to a police officer. The police officer checked the area and located the stick not far from the store. About a half mile away from the liquor store, the owner of another store signaled the police officer because he had detained two males for stealing. The police officer noticed that one of the detainees looked like one of the males he had seen in the surveillance recording at the liquor store. He then conducted “an in-field showup.” Defendant was one of the detainees. The cashier from the liquor store was able to identify defendant as the male involved in the robbery who hit him with a stick.
When questioned, defendant admitted involvement in the robbery but denied hitting the cashier with a stick. The court declared defendant a ward of the juvenile court under Welfare and Institutions Code section 602. The court also found both the robbery and the weapon use allegations to be true beyond a reasonable doubt. Defendant was released on probation subject to various conditions and was allowed to remain in his parents’ home.
DISCUSSION
The terms and conditions of defendant’s probation are set forth in a probation report dated December 6, 2006.
Additional terms that are not relevant to our discussion were also placed on the record during a hearing held December 20, 2006.
Defendant contends the following two conditions of his probation are unconstitutionally vague and over broad: “That the minor shall: [¶] . . . [¶] 7. Not associate with known users or sellers of controlled substances nor be in any place where they are known to be used or sold. [¶] . . . [¶] 17. Not associate with any known probationer, parolee, or gang member, or anyone known by the probationer to be disapproved of by his/her parent(s) or probation officer.”
The People argue defendant waived his right to appeal the constitutionality of these conditions as overly broad and vague because he failed to object in the trial court. However, the forfeiture issue was resolved in defendant’s favor by the Supreme Court’s decision in In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K). Defendant’s argument is that the challenged probation conditions are unconstitutionally vague and overly broad on their face. These issues are pure questions of constitutional law that do not depend on the facts of the particular case for resolution. Pursuant to Sheena K., these issues are not forfeited if the probationer fails to object in the trial court. (Ibid.) We therefore reject the People’s argument that defendant forfeited his appeal of these issues.
Also relying on our Supreme Court’s decision in Sheena K., supra, 40 Cal.4th at pp. 879, 890-891, defendant argues these conditions are vague and overly broad because they do not expressly state who must have knowledge. As a result, he believes it is possible that these conditions could be misinterpreted by the court to mean he is in violation of his probation if his parents and/or the probation officer know of a prohibited association but he does not.
A probation condition should be given “the meaning that would appear to a reasonable, objective reader.” (People v. Bravo (1987) 43 Cal.3d 600, 606.) To withstand a constitutional challenge based on vagueness apparent on the face of a probation condition, the 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.’ ” (Sheena K., supra, 40 Cal.4th at p. 890.) The minor in Sheena K. was placed on probation, subject to the condition that she not “ ‘associate with anyone disapproved of by probation.’ ” (Id. at p. 880.) Our Supreme Court agreed with the minor
that the condition was unconstitutionally vague and overly broad, because it did not include an express knowledge requirement. The Supreme Court reasoned that, as written, the condition gave the probation officer unlimited power to preclude the minor’s association with anyone without requiring any prior knowledge of those individuals the probationer must avoid because her probation officer found them unacceptable. (Id. at pp. 890-891.)
Defendant argues the challenged probation conditions in his case suffer from the same constitutional defect as the probation condition considered by our Supreme Court in Sheena K. However, the probation condition considered in Sheena K. is distinguishable from the two conditions appealed in this case. In Sheena K., the knowledge element was not expressly included on the face of the condition. Here, both of the challenged probation conditions contain an express knowledge element in that defendant must avoid “known” drug users or sellers, as well as probationers, parolees, and gang members, and places where controlled substances are “known to be used or sold.” In addition, the condition at paragraph 17 specifically provides that defendant must avoid “anyone known by the probationer to be disapproved of by his/her parent(s) or probation officer.” Thus, the issue raised is whether the word “known,” as it is used in these conditions, is sufficient to advise defendant what is required of him and for the court to determine whether defendant has violated either condition.
The only reasonable reading of the challenged conditions would require defendant to refrain from the prohibited associations only if he himself knows about them based on his own personal knowledge or knowledge communicated to him by his probation officer or a parent. To the extent he has been told by his probation officer or a parent that an association with a particular person or place is prohibited based on the reasons listed in either of these conditions, he is charged with that knowledge and can be held responsible for engaging in the prohibited associations. In our view, it would be unreasonable for a court to interpret the knowledge requirement in either of these conditions to refer to the knowledge of defendant’s probation officer or parents if that knowledge has not been communicated to defendant. In short, should defendant be charged with a violation of either of these conditions, we are confident that, as written, neither condition would be misinterpreted by the trial court to find a violation where defendant himself is not aware he has engaged in a prohibited association. We therefore conclude that the probation conditions, as written, are constitutionally valid and enforceable.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, J., KING, J.