Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. SWF019502. Roger A. Luebs, Judge.
Amanda F. Benedict, 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, Assistant Attorney General, and Rhonda Carthwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
On February 6, 2007, defendant Jonathan Butler’s wife, Sonja M., was moving out of their home with their son, having decided to divorce defendant. On the day she moved out, she served defendant with a temporary restraining order (TRO) to stay away from her and their son. As she moved her last item, defendant hit her in the face. She fell to the ground, and he got on top of her, strangling her around the neck. As a result of being hit, she had seven fractures to the bones on her eye socket and cheek.
After two mistrials, defendant was convicted in a third trial of corporal injury to a spouse and assault with force likely to cause great bodily injury, in addition to the enhancement that defendant inflicted great bodily injury upon Sonja.
Defendant now contends:
1. The trial court erred by admitting his prior acts of domestic violence against Sonja under Evidence Code section 1109.
2. Insufficient evidence supports his convictions for corporal injury to a spouse and for assault causing great bodily injury.
3. The probation condition that he submit to drug and alcohol testing should be stricken as it is not reasonably related to his offenses.
4. The probation condition that he not associate with any person on probation or parole should be modified to include a knowledge requirement.
We conclude there were no prejudicial trial errors and that the evidence supports defendant’s convictions. We agree that the probation condition forbidding association with any person on probation or parole should be modified to include a knowledge requirement. We otherwise affirm the judgment.
I
PROCEDURAL BACKGROUND
Defendant was initially charged in an information with corporal injury to a spouse (Penal Code, § 273.5, subdivision (a)) (count 1) and with assault likely to cause great bodily injury (§ 245, subd. (a)(1)) (count 2). For both of these counts, there was a special allegation that defendant caused great bodily injury (§ 12022.7, subd. (e)). In addition, defendant was charged in count 3 with making terrorist threats (§ 422) and in count 4 with a misdemeanor violation of a restraining order (§ 273.6, subd. (b)). At a first trial, defendant was found not guilty of counts 3 and 4. The jury could not reach a verdict on counts 1 and 2, and a mistrial was declared. A retrial of counts 1 and 2 resulted in another mistrial.
All further statutory references are to the Penal Code unless otherwise indicated.
In a third trial, defendant was found guilty of corporal injury to a spouse and assault likely to cause great bodily injury. The great bodily injury allegation for corporal injury to a spouse was found true.
The trial court found that, although there was a presumption against placing defendant on probation, based on the unusual circumstances of the case, probation was appropriate. Defendant’s sentence of five years was suspended, and he was placed on formal probation. He was to serve 60 days in county jail and 180 days in a weekend program.
II
FACTUAL BACKGROUND
A The Incident on February 6, 2007
In 2004, Sonja and defendant moved in together in his house in Murrieta. Defendant had three children from a previous marriage who lived with him. Sonja and defendant had a son, C.B., in 2005 and were married in 2006. Sonja married defendant even though they were having problems in their relationship because she was afraid of him. She had no money to leave him and felt trapped. Defendant paid all of her expenses because she was no longer working.
Defendant had suggested in September 2006 that she move out. She did not because she wanted to help with his three children and because she had no money.
In January 2007, Sonja finally decided to leave defendant and contacted an attorney to handle the divorce. A TRO to keep defendant away from her and C. was obtained. On the morning of February 6, 2007, defendant was served with the TRO. Sonja had hired movers for that day.
Sonja was seeking full custody of C. in the divorce proceedings and wanted to take him back to her home country of Switzerland.
Defendant was inside his office with the door closed while Sonja moved her things. When the movers completed and left, she knocked on his office door. Defendant came out and held C. while Sonja put one last item in the car.
Sonja came back inside to get C. Suddenly, defendant hit Sonja on the left side of her face, causing her to fall. Sonja was hit so hard she passed out on the floor.
She woke up and was still on the ground. She heard C. crying. Defendant was straddling her with his hands around her neck trying to choke her. He told her that he was going to kill her so that she could not leave the house. Sonja lost consciousness again. When she woke up again, defendant took her to the kitchen and got her water. He also gave her ice for her face.
Defendant told Sonja he had called 911. She overheard defendant tell someone on the phone that he had been assaulted. She then called 911because she did not believe he had really called.
The 911 call Sonja made was played for the jury. The dispatcher asked if she had already called, and Sonja explained defendant may have called but she was not sure. Sonja told the dispatcher that defendant had choked her until she was unconscious and had hit her.
Sonja tried to leave with C. but felt “woozy” and sat down on the couch. Defendant went upstairs with an aluminum water bottle in his hand. Sonja went outside and waited for the police. When they arrived, defendant came outside. He had swelling over his left eye that had not been there before she left the house.
Sonja’s face was starting to swell when the police arrived. She had bruises on her arm. She refused medical attention because she was not aware of the severity of her injury.
Sonja went to Dr. Perrin Curran on February 7. She told him that defendant had hit her on the left side of her face and had tried to strangle her. She complained that her vision was foggy, she had difficulty moving her neck, and she had pain on the left side of her head. The left side of her face had “severe” bruising and swelling.
A CT scan and X-rays were taken that showed that she had seven fractures in the bones of the eye socket and some on her cheek bone. She was administered pain medication. Dr. Curran referred Sonja to a plastic surgeon because he was concerned the injuries would affect her ability to see.
Sonja had bruising for several weeks after the incident and suffered from headaches. The healing time was six weeks. Dr. Curran surmised the injury to her eye socket would have been caused by a fair amount of force and could have been the result of just one punch. A moderate or heavy amount of force would have to be applied to strangle a person to the point of unconsciousness. Dr. Curran had prescribed antidepressants to Sonja in the past.
B. Prior Incident of Violence
In May 2006, defendant and Sonja had gotten into an argument. While they were arguing, defendant pushed her, and she fell backward. Her wrist had been injured, and she had been “badly bruised.” She did not immediately seek medical treatment because she was “ashamed.” She eventually went to Dr. Curran. Sonja did not tell Dr. Curran when she sought treatment that the injury was a result of defendant pushing her. She simply said she fell.
C. Defense
Defendant testified on his own behalf. Prior to February 6, 2007, defendant owned a firearms training and equipment company. He had many firearms in the house.
In 2004, Sonja suffered two miscarriages, and her personality started to change. Sonja stopped taking her antidepressant medication in 2006. After C. was born, she had terrible mood swings. She was not interacting well with the family. Defendant paid all of Sonja’s expenses, and she had ample access to his money.
In September 2006, prior to a business trip, he made arrangements with a family member to take care of his three children because he had asked Sonja to move out. Defendant and his two daughters recommended that she move out unless she changed her behavior or got medication. Sonja called him and promised to get back on her medication but did not. Sonja then told defendant that she would use whatever means she could to get custody of C. She was also aware that he would have to give up his firearms if she obtained a TRO. Sonja told him that if he gave her custody of C., she would not file the TRO against him.
In January 2007, defendant gave Sonja a $1,000 check to help her move out.
Defendant was served with the TRO on the morning of February 6, 2007. He had a meeting at the house with Tina Jackson that morning and moved it to a nearby park. He chose a park near his house so he could see his driveway in order to know when Sonja left the house so he could return without violating the TRO.
Jackson testified that she picked up defendant at his house, and they drove to the park.
He observed Sonja and the movers drive away from the house and pointed it out to Jackson. Jackson returned with defendant to the house and used the bathroom. Jackson indicated that the house was empty. As Jackson drove away from the house, she saw Sonja returning to the house.
Defendant went to his office to work. He locked the door, which was his usual custom to avoid interruptions. While he was working, Sonja came back into the house and knocked on the office door. When defendant did not open the door, she started pounding on the door. He told her he did not want to open the door because they were not supposed to be near each other according to the TRO. She told defendant he should open the door so he could say goodbye to C.
C. was not in the house; Sonja had left him in the car.
When defendant finally opened the door and stepped out, he was hit in the side of the head. He was rendered unconscious and fell to the floor. When he tried to get up again, he saw something moving toward him. He tried to push against whatever was coming at him and then was hit again in the head. He reached and grabbed at what was coming at him, which he discovered was Sonja. He hit her in the head with “an open palm,” to protect himself. He denied he struck her in the eye but admitted he hit her hard. Sonja fell to the ground. Defendant held her to the ground so that she could not hit him again. He never strangled her.
Defendant carried Sonja to the couch. He told her not to move, that he was calling the police and that she was going to jail. His 911 call was played for the jury. Defendant told the dispatcher that he had been attacked by Sonja. She had hit him with her hands. Sonja was present when he called the police and was angry he called. Defendant gave her ice for her face and told her to get out of the house.
Defendant denied he hit himself with the aluminum water bottle. He told the police who responded he had been hit in the head twice but did not know with what. He told them he wanted Sonja arrested; he was arrested instead.
Defendant indicated that Sonja kept a baseball bat in the kitchen. It was found on the side yard after the incident. He believed that Sonja had used it to hit him.
Defendant had to give up his firearms when the TRO was served, and it had affected his ability to earn a living. Although he was concerned for his safety that day, he did not arm himself with one of the many firearms he had in the house.
Defendant was treated at Rancho Springs Medical Center on February 6, 2007. He had swelling over his left eye. The injury was consistent with being hit with an object. A CT scan was performed, and there was no skull fracture and no internal bleeding. He was diagnosed with a head injury. A concussion was also diagnosed based on defendant’s complaint that he was having headaches.
Defendant denied that he ever pushed Sonja in May 2006. She had slipped and fallen on a wet floor. Defendant claimed the incident occurred in late 2005 or early 2006. She reinjured herself lifting weights and then went to the doctor.
Wendell Chun, defendant’s friend, stayed at defendant’s house in September 2006. He overheard defendant tell Sonja that if she did not like living with him, she could leave. He heard Sonja say that she did not want to move out.
Defendant’s neighbors testified. On February 6, 2007, one of them saw defendant walk out the front door of his house around 9:30 a.m. but did not know where he went from there. Another saw that the moving van and Sonja’s car were gone from the front of defendant’s house that afternoon.
Both of defendant’s older daughters testified that Sonja had changed in 2006. There were numerous family discussions about Sonja’s behavior. She was told that she needed to leave the house unless she changed. They asked her to go back on her medication. Defendant always gave Sonja money. Dents in defendant’s water bottle were caused by C. playing with it. Sonja told one of the daughters she needed leverage against defendant to get custody of C.
K.B., one of defendant’s daughters, denied defendant had ever tried to choke her.
D. Rebuttal
One of the movers who helped Sonja move believed defendant was in the house when they moved her. He believed defendant was in his office when they left. When they left the house, Sonja remained behind but was to meet them at the new house.
The responding sheriff’s deputy met with defendant, who did not appear disoriented in any way. Defendant told him that he had been struck once in the head and had then hit Sonja. Defendant told the deputy later he had been struck twice. Defendant told the deputy that he remained in his office while Sonja moved.
The sheriff’s deputy noticed Sonja had redness on her neck when he arrived. He determined by interviewing both defendant and Sonja that Sonja was telling the truth. Sonja had told the deputy that she had seen defendant with the water bottle in his hand and surmised he had hit himself with it.
K.’s ex-boyfriend had been told by K. that defendant had once choked her and held her against a wall.
K. testified in surrebuttal that the incident occurred when defendant was trying to separate her from her sister when they were arguing. He did not try to choke her.
III
ADMISSION OF PRIOR ACTS OF DOMESTIC VIOLENCE PURSUANT TO EVIDENCE CODE SECTION 1109
Defendant contends the trial court’s admission of a prior act of domestic violence against Sonja by him under Evidence Code section 1109 was highly prejudicial under Evidence Code section 352, and the admission violated his rights to due process and a fair trial.
A. Additional Factual Background
Prior to trial, the People brought a motion to admit the prior act of violence committed by defendant against Sonja under Evidence Code section 1109.
The offer of proof by the People was that defendant had pushed Sonja to the ground during an argument, injuring her wrist. The trial court tentatively ruled to admit the evidence. It later revisited the issue. It first noted that this type of evidence was typical Evidence Code section 1109 evidence that was admissible. Further, it was fairly recent and involved the same victim, so it survived the objection by the defendant on Evidence Code section 352 grounds.
As set forth, ante, Sonja testified about the incident, and defendant denied it occurred. The jury was instructed with Judicial Council of California Criminal Jury Instruction (CALCRIM) No. 852 that the prior uncharged act of domestic violence must be proved by a preponderance of the evidence. Further, if found true, the jury was instructed, “[Y]ou may but are not required to conclude from that evidence that the defendant was disposed or inclined to commit domestic violence, and based on that decision also conclude that the defendant was likely to commit, and did commit the violation of Penal Code section 273.5, subdivision (a) as charged in Count 1. [¶] If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one fact to consider along with the all the other evidence. It is not sufficient by itself to prove that the defendant is guilty.... [¶] The People must still prove the charge beyond a reasonable doubt. Do not consider this evidence for any other purpose.”
B. Analysis
Evidence Code section 1109, subdivision (a)(1), as relevant here, provides, “[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.”
Although prior criminal acts are generally not admissible to prove disposition or propensity to commit the charged offense (see Evid. Code, § 1101, subd. (a)), Evidence Code section 1109 creates an exception. Section 1109 was enacted based on the Legislature’s recognition that evidence of prior acts of domestic violence is highly relevant to stop the cycle of domestic violence. (People v. Johnson (2000) 77 Cal.App.4th 410, 419.) Further, in domestic violence cases, prior acts of domestic violence are admissible to prove propensity to commit such acts, because such cases present unique problems of victim credibility. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1313) “The special relationship between victim and perpetrator in... domestic violence... cases, with their unusually private and intimate context, easily distinguishes these offenses from the broad variety of criminal conduct in general. Although all criminal trials are credibility contests to some extent, this is unusually even inevitably so in domestic... abuse cases, specifically with respect to the issue of victim credibility.” (Ibid.)
As the trial court found, evidence that defendant had previously committed an act of domestic violence against Sonja was substantially probative and was typical Evidence Code section 1109 evidence. The two incidents were sufficiently similar to show that defendant would use force during their arguments. Further, it tended to disprove his defense that he had hit Sonja in self-defense.
Propensity evidence under Evidence Code section 1109 is still subject to exclusion under Evidence Code section 352. Under Evidence Code section 352, “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice....”
“By reason of section 110[9], trial courts may no longer deem ‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every [domestic violence] offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other [domestic violence] offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]” (People v. Falsetta (1999) 21 Cal.4th 903, 916-917 [discussing admission of other sex offenses under Evid. Code, § 1108]; see also People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
“A trial court’s decision to admit or exclude evidence is a matter committed to its discretion ‘“and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.”’ [Citation.]” (People v. Geier (2007) 41 Cal.4th 555, 585.)
The evidence that defendant had previously pushed Sonja, causing her to fall and hurt her wrist, was certainly less inflammatory than the current offense wherein he hit her in the face, causing seven bones in her eye socket to fracture. Further, defendant’s complaint that the only evidence supporting the prior act was Sonja’s testimony does not go to its admissibility, but rather to its weight. In fact, there was some corroboration by Dr. Curran, who had treated her for a wrist injury.
Moreover, the evidence did not consume an undue amount of time; it was only briefly mentioned. Further, the act, as noted by the trial court, was very recent. Finally, the jury was instructed that they must find the incident occurred based on a preponderance of the evidence and could not base their verdict solely upon this incident.
We conclude the prior act of violence was more probative than prejudicial.
Defendant contends that his due process rights were violated in this case based on the admission of the evidence under Evidence Code section 1109. He insists that “fundamental unfairness requires reversal without any further showing of prejudice.” Initially, as explained above, the trial court properly applied Evidence Code section 352 in assessing whether the evidence should be admitted under Evidence Code section 1109, and no due process challenge to section 1109 would be successful here. (See People v. Hoover (2000) 77 Cal.App.4th 1020, 1028-1029 [Fourth Dist., Div. Two] [section 1109 does not violate due process].) We find the trial court properly exercised its discretion by admitting the prior act of violence, and as such, the use of the propensity evidence did not deny defendant due process and a fair trial.
Even if we assume that the trial court erred in admitting the uncharged prior incident of domestic violence, such error was harmless in light of the overwhelming evidence supporting defendant’s conviction. Furthermore, defendant had the opportunity to cross-examine Sonja and argue she was not credible. It is thus not reasonably probable that the jury would have reached a more favorable verdict even in the absence of the prior domestic violence evidence. (People v. Watson (1956) 46 Cal.2d 818, 836-837.)
IV
SUFFICIENCY OF EVIDENCE
Defendant contends the evidence of corporal injury to a spouse and assault with force likely to cause great bodily injury was insufficient because Sonja’s testimony could not support the verdicts.
A. Standard of Review
“We often address claims of insufficient evidence, and the standard of review is settled. ‘A reviewing court faced with such a claim determines “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citations.]” (People v. Moon (2005) 37 Cal.4th 1, 22.)
It is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Hale (1999) 75 Cal.App.4th 94, 105.) “Thus, if the verdict is supported by substantial evidence, this court must accord due deference to the trier of fact and not substitute its evaluation of a witness’s credibility for that of the fact-finder. [Citations.]” (Barnes, at pp. 303-304.)
B. Analysis
Defendant’s claim is essentially that Sonja’s testimony was not credible, and since she presented the only evidence that supported his convictions, his convictions must be reversed.
Defendant was convicted of corporal injury to a spouse under section 273.5, subdivision (a), which provides, in pertinent part, “Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony....” In addition, he was convicted of violating section 245, subdivision (a)(1), which provides in pertinent part that it is a crime to commit an “assault upon the person of another... by any means of force likely to produce great bodily injury....” Defendant does not contest that any element of the crimes was not supported by the evidence; rather, he claims that, since Sonja lacked credibility, no conviction can stand based on her testimony. As the People and defendant recognized in the lower court, the case essentially came down to the conflicting testimony of Sonja and defendant.
The evidence was undisputed that the day of the incident, Sonja had decided to move out and served defendant with the TRO. Sonja testified that she went to defendant’s office to allow him to say goodbye to C. Defendant then hit her, causing her to fall. He straddled Sonja and choked her until she was unconscious.
This testimony was corroborated to some extent. Dr. Curran provided that Sonja told him that defendant had choked her and hit her. He confirmed that she had broken bones in her face and a significant amount of force would be required to inflict such injuries. She related the same story to the responding sheriff’s deputy, who noticed redness on her neck. Finally, she was consistent in her 911 call made immediately after the incident that defendant had hit and choked her.
We recognize there were inconsistencies in Sonja’s testimony. For example, she had previously testified that the domestic violence incident occurring in 2006, where she injured her wrist, either happened at the end of the year, in March, or September, and not in May as she testified at trial. She denied that defendant ever gave her a check to pay for her to move out, but it was shown that a $1,000 check was deposited into her account in January 2007. In December 2006, she wrote defendant a Christmas card asking that they take a trip with C. alone and that she loved him very much. She claimed she lied in the card to keep defendant happy. She had inconsistent testimony whether defendant was straddling her or sitting next to her when he choked her.
However, the jury could reasonably conclude that, based on her injuries and consistent testimony on how they occurred, she was telling the truth. We are not in a position on appeal to reassess her credibility. (People v. Barnes, supra, 42 Cal.3d at pp. 303-304.)
We do note that defendant’s version of the story seems somewhat incredible given the severity of Sonja’s injuries. If defendant had really been hit in the head with a baseball bat, causing him to fall, it is inconceivable that he could have inflicted such injury to Sonja merely acting in his own defense. Also, he was impeached on his testimony that he left the house while Sonja moved.
The jurors were instructed that it was up to them to evaluate each witnesses’ credibility, including whether the witness was biased or if there was inconsistent testimony. We find that substantial evidence supported the jury’s verdict.
V
DRUG AND ALCOHOL TESTING PROBATION CONDITIONS
Defendant contends that the probation condition that he submit to drug and alcohol testing was not reasonably related to his crime and must be stricken.
At the time of sentencing, the trial court adopted the probation conditions listed in the probation report. The trial court noted that defendant had agreed to the probation terms and conditions, and there was no objection by defendant. In fact, defendant signed the probation report with the conditions.
Condition 6 provided, “Submit to chem[ical] tests of blood, breath, urine, or combination; phys[ical] tests requested by P[robation] O[fficer]/ law enforcem[en]t officer for detection of controlled substances & alcohol.”
We agree with the People that defendant waived his right to challenge his drug and alcohol testing probation condition because he failed to object to it at the sentencing hearing.
Courts have broad discretion to impose conditions of probation that foster rehabilitation or protect public safety. (§ 1203.1; People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) Appellate courts, “review conditions of probation for abuse of discretion. [Citations.] Generally, ‘[a] condition of probation will not be held invalid 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....” [Citation.]’ [Citation.] This test is conjunctive all three prongs must be satisfied before a reviewing court will invalidate a probation term.” (People v. Olguin (2008) 45 Cal.4th 375, 379.)
If defendant had objected to the term of probation, the trial court could have considered the factors in Olguin. The failure to object to unreasonable probation conditions at the sentencing hearing waives such claims on appeal. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) “A timely objection allows the court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case.” (Id., at p. 235.)
Here, defendant was well aware of the conditions of probation imposed by the trial court, including the challenged condition. He signed the probation report that contained the conditions, admitting he had been fully advised of the conditions. We find that defendant has waived his objection to condition 6 by failing to make such objection in the lower court at the time of sentencing.
VI
NOT ASSOCIATE WITH PERSONS ON PROBATION AND PAROLE CONDITION
Defendant also contends that the probation condition that he not associate with any person on probation or parole is overbroad and unconstitutional, and should be modified to include a knowledge requirement. Respondent concedes that the condition should be modified.
Although defendant likewise did not object to this probation condition, we review his constitutional claim. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.)
Condition 3 of the probation conditions provided, “Not associate with any unrelated person known to be possessor, user, or trafficker of controlled substances, nor any unrelated person on probation or parole.”
“A probation condition is constitutionally overbroad when it substantially limits a person’s rights and those limitations are not closely tailored to the purpose of the condition. [Citation.]” (People v. Harrisson (2005) 134 Cal.App.4th 637, 641.) “[C]onditions of probation that impinge on constitutional rights must be tailored carefully and ‘reasonably related to the compelling state interest in reformation and rehabilitation....’ [Citation.]” (People v. Delvalle (1994) 26 Cal.App.4th 869, 879; see also People v. Smith (2007) 152 Cal.App.4th 1245, 1250.) Similarly, “[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.]” (In re Sheena K., supra, 40 Cal.4th at p. 890.)
“Prohibiting association with” unrelated persons on probation or parole “without restricting the prohibition to known” parolees and probationers “is ‘“a classic case of vagueness.”’ [Citation.]” (In re Justin S. (2001) 93 Cal.App.4th 811, 816.)
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 constitutional vagueness. The appropriate remedy here is to modify the condition. We have the power to modify a probation condition on appeal. (See In re Sheena K., supra, 40 Cal.4th at p. 892; In re Justin S., supra, 93 Cal.App.4th at p. 816.)
We shall order that condition 3 be modified to include a knowledge requirement.
VII
DISPOSITION
We modify probation condition 3 to read as follows: “Not associate with any unrelated person known to be a possessor, user, or trafficker of controlled substances, nor any unrelated person known to be or reasonably should be known to be on probation or parole.” The judgment is affirmed as modified.
We concur: RAMIREZ P. J. McKINSTER J.