Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. No. SS073023A
Duffy, J.
Defendant Jon David Anderson was found guilty after a bench trial of violating Penal Code section 487, subdivision (a), theft of property exceeding $400 in value. He was placed on three years of formal probation, the terms of which included that he “[s]tay at least 100 yards away from victim, victim’s residence and vehicle or place of employment.” On appeal, defendant challenges this probation condition for unconstitutional vagueness. We agree that in the context of this case, the condition as stated is vague. We accordingly modify the condition to cure this infirmity and otherwise affirm the judgment.
Further statutory references are to the Penal Code unless otherwise specified.
STATEMENT OF THE CASE
We take the facts from the trial testimony and the probation report.
On October 24, 2007, Brian Post was working as a construction foreman in the City of Monterey. He was near the corner of Cortez and Franklin Streets, where his crew was involved in backfilling a trench. Post had parked his employer-owned truck and left it unlocked and running while he briefly visited the jobsite. He left his employer-owned laptop computer, valued at about $2,400, in the cab of the truck. Manuel Galvez was operating a backhoe on the construction site when he saw two men who were walking on the street approach Post’s truck and look inside. One of the men, later identified as defendant, was wearing a trench coat. Defendant opened the driver’s side door of Post’s truck, grabbed the computer, and held it to his body inside his coat. He then walked down the street away from the truck. The other man walked away in a different direction.
Galvez alerted Post that someone had taken his computer from the truck. Galvez went after the man not wearing the trench coat. He yelled at the man to stop and the man complied. The man told Galvez that defendant was the one who had stolen the computer. Galvez searched the man and determined that he did not have Post’s computer.
Meanwhile, Post saw defendant, whom he later identified as a tall, slender man with short hair wearing a trench coat, walking away from his truck. Post yelled for defendant to stop, but defendant instead picked up his pace and ducked into an alley. Post and Galvez searched the alley where they found defendant with a group of men gathered on a raised porch.
Post and Galvez could see that defendant had the trench coat wrapped around his shoulders and Post’s computer was right next to him. When Galvez grabbed the computer, Post saw defendant start to get up. Perceiving that defendant was going to resist Galvez’s recovery of the computer, Post kicked defendant “pretty vigorously” near the face to push him back down. This caused defendant to suffer a swollen and bloody lip. Post and Galvez then left the porch and met up with police, who had responded to the area.
Officer Britt interviewed Post and Galvez, then went to the porch and made contact with defendant, whom he arrested. Defendant denied having taken the computer.
B. Procedural Background
After being held to answer in a preliminary hearing, defendant was charged by information with one count of theft of property exceeding $400 in value in violation of section 487, subdivision (a). He was later found guilty after a court trial.
Consistently with the recommendation of the probation report, defendant was placed on three years of formal probation. Without objection, and further as recommended by the probation report, the accepted conditions of probation included an order directing defendant to “[s]tay at least 100 yards away from victim, victim’s residence and vehicle or place of employment.” The condition provided no notice of the location of Post’s residence or place of employment. Nor did it identify his vehicle or specify whether it referred to an employer-owned or personal vehicle or both. Nor does the record show that defendant had knowledge of these facts. Defendant timely appealed.
DISCUSSION
Defendant challenges the above probation condition on the basis that it is unconstitutionally vague. He contends that the condition should be modified to include an explicit knowledge requirement. Respondent contends otherwise.
Defendant preliminarily points out that the issue has not been forfeited by his failure to have objected below and respondent appears to agree. It is true that a contention that a probation condition on its face is unconstitutionally vague or overbroad may be raised for the first time on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 888 (Sheena K.).) In so holding, the California Supreme Court reasoned that unlike a claim that a probation condition is unreasonable, a claim that a condition is unconstitutional is a “pure question of law, easily remediable on appeal by modification of the condition. [Citations.]” (Ibid.)
In the ordinary case in which a trial court imposes a probation condition based on its determination of historical or situational facts regarding the defendant or the defendant’s crimes, a reviewing court is confined to determining whether imposition of the condition amounted to an abuse of discretion. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.) A trial court may “impose conditions to foster rehabilitation and to protect public safety.” (Id. at p. 1120.) But the court’s discretion is not unbounded. It has no discretion to impose a condition that violates the federal or state Constitutions or another provision of law. “The abuse of discretion standard . . . measures whether, given the established evidence, the act of the lower tribunal falls within the permissible range of options set by the legal criteria. ‘The scope of discretion always resides in the particular law being applied, i.e., in the “legal principles governing the subject of [the] action. . . .” Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an “abuse” of discretion.’ ” (Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 831, fn. omitted.)
“[T]he void for vagueness doctrine applies to conditions of probation.” (People v. Reinertson (1986) 178 Cal.App.3d 320, 324.) In examining whether a probation condition is void for vagueness, courts have considered whether the condition is “ ‘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.) “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ ” (Ibid.) This concept translates to the requirement of adequate notice. “ ‘ “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” [Citations.] The operative corollary is that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of the law.” [Citations.] [¶] . . . Thus, a law that is “void for vagueness” not only fails to provide adequate notice to those who must observe its strictures, but also impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” ’ ” (People v. Lopez (1998) 66 Cal.App.4th 615, 630 (Lopez), quoting People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115-1116 (Acuna).)
Two principles guide the evaluation “whether a . . . probation condition . . . is unconstitutionally vague. First, ‘abstract legal commands must be applied in a specific context. A contextual application of otherwise unqualified legal language may supply the clue to a law’s meaning, giving facially standardless language a constitutionally sufficient concreteness.’ ([Acuna], supra, 14 Cal.4th at p. 1116.) Second, only reasonable specificity is required. (Id. at p. 1117.) Thus, a statute ‘will not be held void for vagueness “if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources.” ’ [Citation.]” (Lopez, supra, 66 Cal.App.4th at p. 630.)
Our high court in Sheena K. determined that a probation condition requiring that the juvenile defendant there “not associate with anyone ‘disapproved of by probation’ ” was unconstitutionally vague and overbroad “in the absence of an express requirement of knowledge . . . .” (Sheena K., supra, 40 Cal.4th at pp. 890, 891, fn. omitted.) This was because the condition itself did not notify the defendant in advance with whom she was prohibited from associating, nor did it require that the probation officer communicate such information to her. (Id. at pp. 891-892.) Thus, the probation condition gave the probation officer the power virtually to preclude the defendant’s association with anyone (id. at p. 890), which could theoretically include grocery clerks, mail carriers, and health care providers. Modification of the probation condition to require that defendant have knowledge of who was disapproved of by her probation officer cured the infringement of the defendant’s constitutional rights. (Id. at p. 892.)
In People v. Garcia (1993) 19 Cal.App.4th 97, 102 (Garcia), the court of appeal held that a probationary term prohibiting the defendant from associating with users and sellers of narcotics, felons, or ex-felons did not pass constitutional muster in that it failed to recognize that the defendant may inadvertently socialize with individuals unknown to him to fall within these categories. The court found an implicit recognition of the knowledge requirement within the condition incompatible with the importance of constitutional rights and goals. (Ibid.) As a remedy, the court explicitly modified the condition to prohibit defendant from associating with persons he knew to be users or sellers of narcotics, felons, or ex-felons. (Id. at p. 103.)
Similarly, in Lopez, the defendant’s probationary term barred him from any gang association, involvement in gang activities, display of any gang markings, or wearing of gang clothing. (Lopez, supra, 66 Cal.App.4th at p. 622.) The reviewing court found the term “gang” to be unconstitutionally vague and overbroad in that it failed to put the defendant on proper notice of those with whom he was prohibited from associating, what he could wear, and what activities in which he might lawfully engage. (Id. at pp. 628-631.) The court found an implied requirement of knowledge insufficient to overcome the constitutional infirmities. “Without at least the insertion . . . of a knowledge element, [the defendant] was subject to being charged with an unwitting violation of the condition because nothing in it required the police or the probation office to apprise [the defendant] of the ‘identified’ items of gang dress before he was charged with a violation.” (Id. at p. 634.) Hence, the court modified the conditions of probation to insert the section 186.22, subdivisions (e) and (f) statutory definition of “criminal street gang” and to require that the defendant not associate with anyone known by him to be a gang member and not wearing clothing known by him to be gang attire. (Id. at p. 638.) With these minor modifications, the court found that the probationary terms passed constitutional muster.
Respondent argues that the condition here is permissible because defendant knows what is required of him. He cites People v. Delvalle (1994) 26 Cal.App.4th 869, 879 (Delvalle), in support of this contention. In that case, the defendant complained that a probation condition that required him to stay away from “ ‘places where minor children congregate’ ” was unconstitutionally vague. (Id. at p. 878.) The court held that the condition was not vague because the trial court had given examples of “ ‘obvious places that come to mind’ ” such as “ ‘elementary schools, day care, parks. [¶] Stay away from places where young children are around.’ ” (Id. at pp. 878-879.) This explication is patently distinguishable from the instant case in which specific locations relating to the particular victim rather than generalized categories of places were prohibited and the trial court gave no qualifying information.
Respondent also relies on In re Michael D. (1989) 214 Cal.App.3d 1610, 1616, for the proposition that a probation condition is not vague when the condition may be clarified by a defendant’s probation officer. In that case, the defendant complained that a probation condition that prohibited him from being “ ‘present in any known gang gathering area’ ” was unconstitutionally vague. (Id. at p. 1616.) The court concluded that the condition was not vague because the record showed that the defendant knew where the particular gang gathered because he lived in the area and was a member of the gang. In addition, the probation conditions were spelled out in detail in the probation order and defendant’s probation officer was in a position to explain the particulars to him. (Id. at pp. 1616-1617.) Here, in contrast, the record does not show that defendant knows the locations that are prohibited. Even defendant’s probation officer would likely not have current information about the location of the victim’s vehicle or employment at any given moment. And the probation order here merely mirrors the court’s oral pronouncement, giving no further details.
The obvious jurisprudential trend is toward requiring that a term or condition of probation explicitly require knowledge on the part of the probationer that he is in violation of the term in order for it to withstand a challenge for unconstitutional vagueness. “[P]robation conditions that implicate constitutional rights must be narrowly drawn” and the knowledge requirement in these circumstances “should not be left to implication.” (Garcia, supra, 19 Cal.App.4th at p. 102.) We therefore agree with defendant that in the absence of an explicit knowledge requirement, the probation condition requiring him to stay away from his victim’s vehicle, residence, and place of employment, is not narrowly enough drawn to give him adequate notice of the locations he must avoid. This is particularly true because the victim’s vehicle will naturally change locations, as will his place of his employment, i.e., his temporary construction jobsites. This means that the prohibited locations are mostly moving targets about which defendant has no information. Absent modification of the condition, defendant remains vulnerable to arrest and punishment for unwittingly violating the probation term. (E.g., Lopez, supra, 66 Cal.App.4th at p. 628 [probation condition overbroad where it prohibited defendant “from associating with persons not known to him to be gang members”]; In re Justin S. (2001) 93 Cal.App.4th 811, 816; Garcia, supra, 19 Cal.App.4th at p. 103 [probation condition overbroad where it prohibited defendant from associating with persons not known to him to be users or sellers of narcotics]; In re Vincent G. (2008) 162 Cal.App.4th 238, 247-248 [condition modified so that defendant was not to “ ‘associate with any person whom [he knew], or whom the probation officer inform[ed him], is a gang member’ ”].)
We conclude that the challenged probation condition here is not “ ‘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 defect may be remedied by modifying the condition as set out in our dispositional order to incorporate a more precisely stated knowledge requirement.
DISPOSITION
The subject condition in the probation order is modified as follows: “Stay at least 100 yards away from victim, from any vehicle that you know to belong to victim, and from those locations that you know to be the victim’s residence and place of employment.” In all other respects, the judgment is affirmed.
WE CONCUR: Elia, Acting P.J., Bamattre-Manoukian, J.