Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside CountySuper.Ct.No. INF055674, Charles Everett Stafford, Jr., Judge. Affirmed as modified.
Anita P. Jog, 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, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Bradley A. Weinreb, Deputy Attorney General, for Plaintiff and Respondent.
RICHLI, J.
Pursuant to a plea agreement, defendant pleaded guilty to willfully and unlawfully inflicting corporal injury resulting in a traumatic condition upon a cohabitant or spouse (Pen. Code, § 273.5, subd. (a)). In return, the remaining allegations were dismissed, and defendant was placed on formal probation for three years on various terms and conditions, including serving 205 days in county jail. Defendant’s sole contention on appeal is that probation condition No. 10 that defendant “[n]ot associate with any unrelated person on probation or parole” must be modified or stricken as unconstitutionally vague and overbroad. We agree with the parties that the relevant probation condition must be modified to require a knowledge requirement.
I
The factual background is taken from the preliminary hearing transcript.
On September 16, 2006, defendant entered the home of his former girlfriend without permission. Once inside, defendant struck her in the face and struggled with her as she tried to call 911.
II
DISCUSSION
The trial court imposed probation condition No. 10, that defendant “[n]ot associate with any unrelated person on probation or parole.” Defendant contends this condition is unconstitutionally overbroad and vague because it is not limited to people whom defendant knows are on probation or parole. He requests that this court strike the probation condition or modify it to provide defendant not associate with any unrelated person he knows to be on probation or parole “and outside of programs [such as a domestic violence program] required as part of [defendant’s] probation.” The People do not oppose the request that this challenged condition be modified.
Trial courts have broad discretion to set conditions of probation in order “to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120; see also Pen. Code, § 1203.1, subd. (j).) “If it serves these dual purposes, a probation condition may impinge upon a constitutional right otherwise enjoyed by the probationer, who is ‘not entitled to the same degree of constitutional protection as other citizens.’ [Citation.]” (People v. Lopez (1998) 66 Cal.App.4th 615, 624.) However, that discretion is not boundless. (People v. Garcia (1993) 19 Cal.App.4th 97, 101.) “[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.)
“[T]he void for vagueness doctrine applies to conditions of probation.” (People v. Reinertson (1986) 178 Cal.App.3d 320, 324.) A vagueness challenge is based on the due process concept of fair warning. (In re Sheena K. (2007) 40 Cal.4th 875, 890.) Therefore, 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[]’ . . . .” (Ibid.) Similarly, “[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 [“‘ . . . [t]he 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”].) Hence, probation conditions are overbroad if they prohibit the defendant from associating with persons other than those targeted by the restriction. (People v. Lopez, supra, 66 Cal.App.4th at pp. 628-629 [probation condition must contain element of knowledge of gang membership].)
Our state Supreme Court recently determined that a probation condition requiring that the juvenile defendant “not associate with anyone ‘disapproved of by her probation officer’” was unconstitutionally vague and overbroad “in the absence of an express requirement of knowledge . . . .” (In re Sheena K., supra, 40 Cal.4th at p. 891.) 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. Our Supreme Court reasoned that “the underpinning of a vagueness challenge is the due process concept of ‘fair warning.’” (Ibid.) “The vagueness doctrine bars enforcement of ‘“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.” [Citation.]’ [Citation.]” (Ibid.) 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 Garcia, 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. (People v. Garcia, supra, 19 Cal.App.4th at p. 102.) Likewise, the court found an implicit recognition of the knowledge requirement within the condition incompatible with constitutional goals: “the rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights, lead us to the conclusion that this factor should not be left to implication.” (Ibid.) 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.)
In Lopez, the defendant’s probationary term No. 15 barred him from any gang association, involvement in gang activities, display of any gang markings, or wearing of gang clothing. (People v. Lopez, supra, 55 Cal.App.4th at p.622.) That court found the term 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 in which he might lawfully engage. (Id. at pp. 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.) Hence, 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.) With these minor modifications, the court found the defendant’s probationary terms passed constitutional muster. (Ibid.)
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. We see no reason why this requirement should be limited to the construction of association terms. Even the People acknowledge that the probationary condition should be modified to include a specific knowledge requirement. Therefore, we shall order that defendant’s probationary term No. 10 be so modified.
The People, however, do not address defendant’s overbreadth argument. Defendant argues that probationary term No. 10 has an overbreadth problem, despite the specific knowledge requirement, to the extent that it would still prohibit defendant from associating with persons on probation or parole who are participants in his domestic violence program or as part of his community service as required by his other conditions of probation. He therefore requests that the modification include those persons “outside of the programs required as part of [defendant’s] probation.” Out of an excess of caution, we will so modify the condition.
III
DISPOSITION
Defendant’s probation condition No. 10 is modified to read as follows: “Not associate with any unrelated person known to defendant to be on probation or parole and outside of the programs required as part of defendant’s probation.” As modified, the judgment is affirmed.
We concur: RAMIREZ, P.J., McKINSTER, J.