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People v. Shenouda

Court of Appeal of California
Jan 29, 2009
G040539 (Cal. Ct. App. Jan. 29, 2009)

Opinion

G040539.

1-29-2009

THE PEOPLE, Plaintiff and Respondent, v. MARMENA NAGEB SHENOUDA, Defendant and Appellant.

Richard Schwartzberg, 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, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published in Official Reports


OPINION

THE COURT:

A jury found Marmena Nageb Shenouda guilty of assault with a deadly weapon and misdemeanor spousal battery after he stabbed Elizabeth Elean Torres in the hand with a pair of scissors. The trial court suspended imposition of sentence, placed Shenouda on three years probation, and ordered him to serve 365 days in jail.

The only issue on appeal involves two conditions of probation and a provision within the domestic violence protective order. As conditions of probation, the trial court ordered Shenouda not to associate "with any person disapproved of by the probation officer," and not to have "any contact with Elizabeth Elean Torres directly, indirectly, or through a third party except by an Attorney of Record." The court further stated at the hearing "and youre not to come within 100 yards of her." This condition does not appear in the minute order listing the conditions of probation but appears to be included within the domestic violence protective order. Shenouda argues these conditions are unconstitutionally vague and should be stricken or modified to add a scienter element. The Attorney General concurs, and suggests the conditions be modified.

Our Supreme Court has held that a probation condition that a defendant "not associate with anyone disapproved of by the probation officer" is unconstitutionally vague "in the absence of an express requirement of knowledge." (In re Sheena K. (2007) 40 Cal.4th 875, 891.) The reason is that the probation condition must give a probationer "fair notice" as to what is permitted, and "`for the court to determine whether the condition has been violated." (Id. at p. 890.) The same constitutional analysis applies to the no-contact orders with the victim. As Shenouda points out, the no-contact and 100 yards limitation conditions are vague because "[a]ppellant could innocently be shopping at the mall at the same time Ms. Torres was present. Ms. Torres could see appellant, appellant not see Torres, and have Torres notify law enforcement." Because these conditions do not contain an express requirement of knowledge they are unconstitutionally vague.

Rather than striking the conditions, the Supreme Court has approved the process whereby the appellate courts modify the conditions to add the knowledge element. (In re Sheena K., supra, 40 Cal.4th at p. 892.) Thus, we modify the first probation condition to state: "Do not associate with any persons who you know are disapproved of by the probation officer." We modify the second condition to state: "Do not knowingly have any contact with Elizabeth Elean Torres directly, indirectly, or through a third party except by an Attorney of Record." We modify the domestic violence protective order to state that appellant is not "knowingly" to come within 100 yards of Elizabeth Torres.

As so modified, the judgment of conviction is affirmed. --------------- Notes: Before Sills, P. J., Moore, J., and Fybel, J.


Summaries of

People v. Shenouda

Court of Appeal of California
Jan 29, 2009
G040539 (Cal. Ct. App. Jan. 29, 2009)
Case details for

People v. Shenouda

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARMENA NAGEB SHENOUDA, Defendant…

Court:Court of Appeal of California

Date published: Jan 29, 2009

Citations

G040539 (Cal. Ct. App. Jan. 29, 2009)