Opinion
F073746
05-22-2018
THE PEOPLE, Plaintiff and Respondent, v. MONICO JUNIOR QUIROGA, Defendant and Appellant.
Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Sarah J. Jacobs, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF161668A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge. Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and Meehan, J.
-ooOoo-
INTRODUCTION
Appellant Monico Junior Quiroga is subject to a criminal protective order issued May 13, 2016. He contends clause No. 10 of the order is unconstitutionally vague and must be modified to include an express knowledge requirement. We disagree and affirm.
FACTUAL AND PROCEDURAL SUMMARY
Because Quiroga challenges only a provision of the protective order in this appeal, only those facts and procedure relevant to a resolution of the issue are set forth.
Quiroga was served with a criminal protective order on September 15, 2015, listing his mother as the protected person. Mother has custody of Quiroga's minor son. Mother obtained a criminal protective order against Quiroga because of his behavior and called the police numerous times when he refused to leave her home. Quiroga continued to come to mother's home and threatened to burn down the house. Mother was "scared."
Quiroga was arrested on September 25, 2015. He was charged with multiple offenses arising out of his violation of the criminal protective order.
A jury found Quiroga guilty of stalking in violation of Penal Code section 646.9, subdivision (b). In a bifurcated proceeding, the trial court found Quiroga guilty of violating section 148, subdivision (a)(1), resisting a peace officer. It also was found true that Quiroga had two prior strike convictions and had served three prior prison terms.
References to code sections are to the Penal Code unless otherwise specified. --------
The probation report prepared for sentencing noted that Quiroga had a lengthy prior criminal record. The probation officer found no circumstances in mitigation and five circumstances in aggravation. The probation department recommended imposition of the upper term for the stalking offense and a total term of 11 years in prison.
At the May 13, 2016 sentencing hearing, the People asked the trial court to issue a 10-year protective order against Quiroga on behalf of mother, in addition to imposing the recommended term of 11 years.
The trial court noted that Quiroga's criminal history disclosed probation and parole violations; there were at least two parole violations and five instances where Quiroga absconded from probation. The trial court found that Quiroga's criminal history, the five circumstances in aggravation, and no circumstances in mitigation, warranted imposition of the upper term. A total term of 11 years was imposed, along with various fines and fees.
The trial court also granted the request for a criminal protective order pursuant to section 646.9, subdivision (k)(1). The trial court had the protective order prepared for the judicial officer's signature and it was served on Quiroga during the hearing.
Quiroga filed a notice of appeal on May 13, 2016.
DISCUSSION
The only issue raised by Quiroga in this appeal is a challenge to clause No. 10 of the criminal protective order issued on May 13, 2016. Clause No. 10 provides in relevant part that Quiroga "must take no action to obtain the addresses or locations of protected persons or their family members, caretakers, or guardian." Quiroga contends clause No. 10 is unconstitutionally vague and must be modified to include an express knowledge requirement.
Issue Not Forfeited
Both parties concede that Quiroga did not object to clause No. 10 in the trial court. However, both parties also concede that despite the lack of an objection, Quiroga has not forfeited this issue for purposes of appeal.
The general rule is that only claims properly asserted in the trial court are preserved by the parties and reviewable on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354.) A challenge asserting that a condition of probation is overbroad or vague on its face can be raised in the first instance on appeal despite the failure to object in the trial court if the issue can be resolved as a matter of law without reference to the sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.) Here, too, we conclude Quiroga may challenge the constitutionality of clause No. 10 of the criminal protective order in the first instance on appeal because it raises an issue of law that does not require reference to the record to resolve. (Ibid.; People v. Barajas (2011) 198 Cal.App.4th 748, 753.) Clause No. 10 Not Unconstitutionally Vague
Quiroga contends clause No. 10 is unconstitutionally vague because he may not know if an individual is a "family member[], caretaker[], or guardian" of the protected person, his mother. Quiroga asserts clause No. 10 must be modified to include an express knowledge requirement. Modification of the clause to insert an express knowledge requirement is unnecessary.
"[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' [Citation.] The rule of fair warning consists of 'the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' [citation], protections that are 'embodied in the due process clauses of the federal and California Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const., art. 1, § 7.)'" (In re Sheena K., supra, 40 Cal.4th at p. 890.) Under the concept of fair warning, the government is barred "from enforcing a provision that 'forbids or requires the doing of an act in terms so vague' that people of 'common intelligence must necessarily guess at its meaning and differ as to its application.'" (People v. Hall (2017) 2 Cal.5th 494, 500 (Hall).)
In Hall, the defendant argued that a probation condition barring him from possessing firearms or illegal drugs was unconstitutionally vague in that it lacked an explicit knowledge requirement because it did not expressly state that only knowing possession of the prohibited items was barred. (Hall, supra, 2 Cal.5th at p. 497.) Hall rejected the argument, explaining that "[i]n determining whether the condition is sufficiently definite ... a court is not limited to the condition's text" and "must also consider other sources of applicable law [citation], including judicial construction of similar provisions." (Id. at p. 500.)
Hall explained that relevant case law already construed probation conditions involving the possession of firearm and drugs as "prohibiting defendant from knowingly owning, possessing, or having in his custody or control any handgun, rifle, shotgun, firearm, or any weapon that can be concealed on his person" and "proscribing defendant from knowingly using, possessing, or having in his custody or control any illegal drugs, narcotics, or narcotics paraphernalia, without a prescription." (Hall, supra, 2 Cal.5th at p. 503.) Hall concluded that given "this legal backdrop, ... the firearms and narcotics conditions are not unconstitutionally vague." (Id. at p. 501.)
The California Supreme Court in Hall stated because "no change to the substance of either condition would be wrought by adding the word 'knowingly,'" the court declined the defendant's "invitation to modify those conditions simply to make explicit what the law already makes implicit." (Hall, supra, 2 Cal.5th at p. 503.)
Although the instant case involves a challenge to a provision of a protective order rather than a condition of probation, we apply the same approach as approved in Hall in analyzing Quiroga's vagueness challenge. As in Hall, in determining a vagueness challenge we look beyond the text of a challenged provision itself and examine whether the prohibition on the defendant's future conduct is too vague to be enforceable in light of other sources of applicable law.
A trial court can issue criminal protective orders to protect victims from all communication or contact by the defendant. (§§ 136.2, subd. (i)(1), 273.5, subd. (j), & 646.9, subd. (k).) A violation of a protective order must be knowing. (§ 166, subd. (c)(1).) Section 166, subdivision (c)(1) states in relevant part: "a willful and knowing violation of a protective order or stay-away court order ... shall constitute contempt of court, a misdemeanor ...." A second or subsequent knowing violation of a protective order can result in a felony conviction. (§ 166, subd. (c)(4).)
Since a violation of a protective order must be "willful and knowing" as stated in section 166, subdivision (c)(1), proof of a violation necessarily requires the People to prove any violation was knowing and willful. For Quiroga to be in violation of clause No. 10's provision that he "must take no action to obtain the addresses or locations of protected persons or their family members, caretakers, or guardian," he must have done so knowingly and willfully. (§ 166, subd. (c)(1).) There is no violation of the protective order if Quiroga was unaware of the person's connection to the protected person, his mother. (§ 166, subd. (c)(1); see Hall, supra, 2 Cal.5th at p. 503.) Therefore, a knowledge requirement is already implicit and modifying clause No. 10 to make "explicit what the law already makes implicit" would serve no purpose. (Hall, supra, at p. 503.)
The cases relied upon by Quiroga for the proposition that a knowledge requirement must be explicitly stated to avoid unconstitutional vagueness pre-date the Hall opinion. (See, e.g., People v. Moses (2011) 199 Cal.App.4th 374, 377; People v. Leon (2010) 181 Cal.App.4th 943, 952.) Because knowledge is implied in clause No. 10 of the criminal protective order, Quiroga cannot unknowingly or unwittingly violate the order by seeking to obtain the address or location of someone who is a family member, caretaker, or guardian of his mother if he is unaware of the relationship. (§ 166, subd. (c)(1).) Clause No. 10 need not be amended to include an express knowledge requirement because it provides a "'"reasonable degree of certainty"'" and is, therefore, not unconstitutionally vague. (Hall, supra, 2 Cal.5th at p. 503.)
The appellate court in People v. Patel (2011) 196 Cal.App.4th 956 stated, "there is now a substantial uncontradicted body of case law establishing, as a matter of law, that a probationer cannot be punished for presence, possession, association, or other actions absent proof of scienter" and the knowledge requirement "should be considered a part of the conditions" as though "'"expressly referred to and incorporated."'" (Id. at p. 960.) The Patel opinion noted the "dismaying regularity" of having to revisit this issue on appeal and stated it would "no longer entertain this issue on appeal." (Ibid.) Instead, henceforth, it would "construe every probation condition proscribing a probationer's presence, possession, association, or similar action to require the action be undertaken knowingly." (Ibid.)
As in Hall, we construe clause No. 10 of the criminal protective order to include an implicit knowledge requirement, thus clause No. 10 is not unconstitutionally vague. (Hall, supra, 2 Cal.5th at p. 501.) We see no need to modify the language of clause No. 10 "to make explicit what the law already makes implicit." (Id. at p. 503.)
DISPOSITION
The judgment and criminal protective order issued May 13, 2016, are affirmed.