From Casetext: Smarter Legal Research

People v. Perez

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 18, 2012
B229322 (Cal. Ct. App. Jan. 18, 2012)

Opinion

B229322

01-18-2012

THE PEOPLE, Plaintiff and Respondent, v. ELEAZAR PEREZ, Defendant and Appellant.

Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, and Colleen M. Tiedemann, Deputy Attorney General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. TA113594)

APPEAL from an order of the Superior Court of Los Angeles County. Karen Ackerson-Brazille, Judge. Affirmed.

Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, and Colleen M. Tiedemann, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Eleazar Perez was charged by information with two counts of criminal threats (Pen. Code, § 422), one of which carried a deadly weapon enhancement (Pen. Code, § 12022, subd. (b)(1)), and one count of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)). The charges arose out of an altercation with his live-in girlfriend.

All undesignated statutory references are to the Penal Code.

The jury convicted defendant of the lesser included offense of misdemeanor spousal battery (§ 243, subd. (e)(1)) for the corporal injury count, and acquitted him of the remaining counts. Defendant was granted probation for a term of 36 months and ordered to serve 210 days in county jail, with credit for 210 days. The court entered a protective order, requiring defendant to "not come within 200 yards of the protected person and their animals," and restricting defendant from "owning, possessing, purchasing or attempting to purchase, receiving or attempting to receive, or otherwise obtaining a firearm." The court also imposed several conditions of defendant's probation, which required defendant to "obey the protective order issued in this . . . case," that defendant "not own, use or possess any dangerous or deadly weapons, including any firearms, knives or other concealable weapons[,]" as well as other conditions not at issue here.

Defendant filed a timely notice of appeal. He challenges his "probation conditions" requiring him to stay away from the victim and prohibiting him from possessing weapons, contending they are unconstitutionally vague for failure to include an express knowledge requirement. Although no objection to the above conditions was made in the trial court, his claims are cognizable on appeal, because it is well settled that a challenge to a "facial constitutional [vagueness or overbreadth] defect in the relevant probation condition" may be raised for the first time on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 887.)

"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." (In re Sheena K., supra, 40 Cal.4th at p. 890.) Courts have found "probation conditions to be unconstitutionally vague or overbroad when they do not require the probationer to have knowledge of the prohibited conduct or circumstances." (People v. Kim (2011) 193 Cal.App.4th 836, 843.)

Defendant incorrectly contends the challenged stay-away condition is a condition of his probation, when it is instead a term of the domestic violence protective order entered in this case. (See §§ 243; 1203.097, subd. (a)(2) [criminal court protective order required in domestic violence cases].) Therefore, it appears defendant is really challenging the condition of his probation requiring him to "obey the protective order issued in this or any other case" by asserting that the customary stay-away condition of the protective order runs afoul of the constitutional limitations on probation conditions. Defendant has directed us to no case condoning such a challenge to the standard terms of the Judicial Council form protective order, instead arguing for the first time in his reply brief that "in any practically meaningful sense, the stay away order is a probation condition." "[A]n appellant bears the burden of perfecting the appeal and showing error and resulting prejudice." (People v. Coley (1997) 52 Cal.App.4th 964, 972.) "It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness." (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)

We granted respondent's motion to augment the appellate record to include the "Criminal Protective Order—Domestic Violence" entered in this case, which was on the standard Judicial Council form, CR-160 [Rev. Jan. 1, 2009].
--------

And, in any event, the challenged provision is akin to an "obey all laws" probation condition, for which a violation of the law must be established by a preponderance of the evidence. (See, e.g., People v. Rodriguez (1990) 51 Cal.3d 437, 442.) Because a violation of a protective order must be "willful and knowing" (§ 166, subd. (c)(1)), proof of the probation violation necessarily requires proof it was knowing and willful, and therefore any knowledge requirement is implicit.

The other disputed probation condition requires that defendant "not own, use or possess any dangerous or deadly weapons, including any firearms, knives or other concealable weapons." Defendant relies on People v. Freitas (2009) 179 Cal.App.4th 747, where a similar probation condition requiring that the defendant "'[n]ot own, possess or have custody or control of any firearms or ammunition'" was modified on appeal to add a knowledge requirement. (Id. at p. 750, fn. omitted.) Noting that "without the addition of a scienter requirement, [defendant] could be found in violation of probation if he merely borrows a car and, unbeknownst to him, a vehicle owner's lawfully obtained gun is in the trunk," the court reasoned "[a] requirement of knowledge should be read into the probation condition . . . [because] the law has no legitimate interest in punishing an innocent citizen who has no knowledge of the presence of a firearm or ammunition." (Id. at p. 752.) The condition was modified "to specify that defendant not knowingly possess the prohibited items." (Ibid.)

A different result was reached in People v. Kim, supra, 193 Cal.App.4th at p. 847. In People v. Kim, the challenged probation condition provided: "'You shall not own, possess, have within your custody or control any firearm or ammunition for the rest of your life under Section[s] 12021 and 12316[, subdivision] (b)(1) of the Penal Code.'" (Id. at p. 840.) The court concluded the probation condition was coextensive with sections 12021 and 12316, prohibiting possession of firearms and ammunition by convicted felons (the defendant was on felony probation), and that the statutes included an implied knowledge requirement. Therefore, the court found that modification of the probation term to include an express knowledge requirement was unnecessary because knowledge was impliedly required. (People v. Kim, at p. 847.)

We recognize that a knowledge requirement is necessary where a probation condition may be violated by misfortune or accident but we find the reasoning of People v. Kim is more persuasive here. Although defendant is not on felony probation, and the weapons prohibition did not expressly reference another statute (such as section 12021), defendant's misdemeanor domestic violence conviction renders him ineligible to own or possess firearms. (§ 12021, subd. (c)(1) ["any person who has been convicted of a misdemeanor violation of Section . . . 243 . . . and who, within 10 years of the conviction, owns, purchases, receives, or has in his or her possession under his or her custody or control, any firearm is guilty of a public offense"]; see also §§ 243; 1203.097, subd. (a)(2); 136.2.) Possession of dangerous and concealable weapons is prohibited by section 12020. Both sections 12020 and 12021 require that violations be knowing and willful. (People v. King (2006) 38 Cal.4th 617, 627; People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) Moreover, as respondent points out, the protective order includes a similar weapons prohibition, and violation of the protective order must also be knowing and willful. (§ 166, subd. (c)(1).) Because defendant's probation condition merely "implements statutory provisions that apply to the probationer independent of the condition," the probation condition does not require an express knowledge requirement. (People v. Kim, supra, 193 Cal.App.4th at p. 843.)

As a matter of common sense, a weapons prohibition (or violation of a protective order for that matter) is much less susceptible to innocent violation than probation conditions barring possession of stolen property or association with felons or gang members (which are routinely modified to require knowledge), because the status of the property or person is not always obvious. (See People v. Freitas, supra, 179 Cal.App.4th at p. 751 [stolen property]; People v. Garcia (1993) 19 Cal.App.4th 97, 102 [felons].) In the rare case where a probationer might innocently find himself in possession of a weapon (such as the hypothetical relied on in Freitas)or in violation of a protective order, it is clear that the Penal Code requires that defendant's conduct be willful and knowing in order to constitute a probation violation. The knowledge and wrongful intent requirements are so manifestly implied that to require they be expressly stated is neither logical nor necessary.

DISPOSITION

The probation order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

GRIMES, J. WE CONCUR:

BIGELOW, P. J.

FLIER, J.


Summaries of

People v. Perez

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 18, 2012
B229322 (Cal. Ct. App. Jan. 18, 2012)
Case details for

People v. Perez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ELEAZAR PEREZ, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

Date published: Jan 18, 2012

Citations

B229322 (Cal. Ct. App. Jan. 18, 2012)