Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. No. FVI800123. John M. Tomberlin, Judge.
Lauren E. Eskenzi, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General and James D. Dutton, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
MILLER J.
Defendant and appellant Michael Nayef Farag appeals after he pled guilty to one count of driving under the influence of alcohol and one count of forgery of a registration. He contends that a condition of his probation must be modified. The People concede that the probation condition should be modified; we otherwise affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
An officer was dispatched to a reported bar fight. Upon the officer’s arrival, a bar employee pointed out defendant who was leaving on a motorcycle. The officer pursued defendant and attempted to initiate a traffic stop. Defendant continued to drive approaching speeds of 110 miles an hour and weaved in and out of traffic. Defendant pulled over after an additional two patrol units joined the chase.
Upon making contact with defendant, officers noticed that defendant had a bloody nose and smelled of alcohol. Defendant reported that he had consumed approximately one pitcher of beer while at the bar. Defendant failed several field sobriety tests. An officer twice utilized a preliminary alcohol screening device on defendant which revealed defendant’s blood alcohol levels at 0.078 percent and 0.082 percent respectively. Defendant’s blood was drawn and tested revealing a blood alcohol level of 0.09 percent. Prior to entering his plea, defendant admitted on the record that he was guilty of driving under the influence.
Defendant’s motorcycle registration had expired in 2003; however, the sticker attached to the license had been altered to reflect an expiration date of 2008. Defendant was also on misdemeanor probation.
The People charged defendant by information with felony evading an officer (Veh. Code § 2800.2, subd. (a), count 1), misdemeanor driving under the influence of alcohol (§ 23152, subd. (a), count 2), misdemeanor driving while having a blood alcohol level of 0.08 percent or higher (§ 23152, subd. (b), count 3), and misdemeanor forgery of a registration (§ 4463, subd. (a), count 4). Defendant was found to be in violation of his misdemeanor probation.
All further statutory references will be to the Vehicle Code unless indicated.
Count 4 was amended by interlineation to be a felony. Thereafter, defendant pled guilty to counts 2 and 4. In return, the plea agreement provided that the remaining counts would be dismissed, defendant would be granted probation, and defendant’s previously imposed misdemeanor probation would be reinstated. The parties stipulated that the preliminary hearing transcript would provide the factual basis for the plea. The probation officer’s report “recommended terms and conditions of probation... include standard prohibitions against the use of alcohol or frequenting places where alcohol is the chief item of sale, specifically Night Clubs and Bars.” At sentencing, defendant objected to the proposed term No. 11 that would require defendant “Neither possess nor consume any alcoholic beverages nor enter places were such beverages are the chief item of sale.” The court placed defendant on probation for three years and imposed the proposed term, as written, as term No. 10.
DISCUSSION
Defendant contends that probationary term No. 10 is unconstitutionally vague and overbroad as it fails to require that defendant know that any place he may enter has alcohol as its chief item of sale. He requests we modify the condition to provide that defendant “‘neither possess nor consume any alcoholic beverages nor enter places where he knows such beverages are the chief item of sale.’” (Italics added.) The People concede the issue. We agree.
“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.” (People v. Harrisson (2005) 134 Cal.App.4th 637, 641, citing In re White (1979) 97 Cal.App.3d 141, 146 [“‘The Constitution, the statute, all case law, demand and authorize only “reasonable” conditions, not just conditions “reasonably related” to the crime committed.’ [Citation.] [¶] Careful scrutiny of an unusual and severe probation condition is appropriate [citation].”].) “[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.) 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. (2007) 40 Cal.4th 875, 890.)
Our state Supreme Court determined that a probation condition requiring that the defendant not associate with anyone disapproved of by her probation officer was unconstitutionally vague “in the absence of an express requirement of knowledge....” (In re Sheena K., supra, 40 Cal.4th at p. 891.) Likewise, in People v. Garcia (1993) 19 Cal.App.4th 97, the court held that a probationary term requiring the defendant not associate with users and sellers of narcotics, felons or ex-felons was constitutionally overbroad in failing to recognize that the defendant may, inadvertently, socialize with individuals unknown to him to fall within such categories. (Id. at p. 102.) Hence, it explicitly modified the defendant’s condition to prohibit him from associating with persons he knew to be users or sellers of narcotics, felons or ex-felons. (Id. at p. 103.)
Similarly, in People v. Lopez (1998) 66 Cal.App.4th 615, the court found the term of the defendant’s probation barring him from any gang association, involvement in gang activities, display of any gang markings, or wearing of gang clothing constitutionally vague and overbroad in that it failed to put the defendant on proper notice with whom he was prohibited from associating, what he could wear, and what activities he might lawfully engage in. (Id. at pp. 622, 628-631.) That court found an implied requirement of knowledge on the part of the defendant insufficient to overcome the constitutional infirmities: “Without at least the insertion in this aspect of the condition 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.) Thus, the court modified the defendant’s conditions of probation to require that the defendant not associate with anyone known by him to be a gang member and not wear clothing known by him to be gang attire. (Id. at p. 638.)
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 instant probationary term has no such express knowledge requirement. Thus, defendant could be held in violation of his probation because he patronized a location which, unbeknownst to him, had alcohol as its chief item of sale at any particular moment. Defendant specifically suggests a concert venue or sporting arena whose primary business may not be the sale of alcohol, but which, at any given moment, may have alcohol as its chief item of sale. The People here acknowledge that the probation condition should be modified to include a specific knowledge requirement on the part of defendant. We shall so order the modification. (In re Sheena K., supra, 40 Cal.4th at p. 892 [probation conditions may be modified by the reviewing court].)
DISPOSITION
Probation condition No. 10 is modified, as follows, to reflect that defendant’s personal knowledge is required: “Neither possess nor consume any alcoholic beverages nor enter places where he knows such beverages are the chief item of sale.” In all other respects, the judgment is affirmed.
We concur: RICHLI Acting P. J., GAUT J.