Opinion
D071631
07-13-2017
THE PEOPLE, Plaintiff and Respondent, v. TOMAS ZAVALA , Defendant and Appellant.
Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. SCN353387, SCN356869, SCN354747) APPEALS from judgments of the Superior Court of San Diego County, Michael J. Popkins, Judge. Judgments affirmed. Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
In case No. SCN353387, Tomas Zavala pled guilty to causing corporal injury to a spouse or roommate (Pen. Code, § 273.5, subds. (a), (f)(1)). At sentencing, the trial court entered a 10-year criminal protective order prohibiting Zavala from contacting or coming within 100 yards of the victim or her home, place of employment, school or vehicle. Zavala appeals from the judgment, contending that the protective order is unconstitutionally vague because it does not include an explicit knowledge requirement and does not specify the exact locations and vehicles he is to avoid. We conclude that the protective order is not unconstitutionally vague.
Unless otherwise indicated, all further statutory references are to the Penal Code.
In cases Nos. SCN356869 and SCN354747, Zavala has not identified any argument for reversal, and in our independent review of the record, we have found no arguable issues.
Accordingly, we affirm the judgments.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On July 19, 2016, Zavala entered guilty pleas in three separate cases. In case No. SCN356869, Zavala pled guilty to the possession of ammunition by a prohibited person (§ 30305, subd. (a)(1)). In case No. SCN354747, Zavala pled guilty to unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)) and admitted the allegation that he was released on bail at the time of the crime (§ 12022.1, subd. (b)). In case No. SCN353387, Zavala pled guilty to one count of inflicting corporal injury on someone with whom he had an engagement or dating relationship (§ 273.5, subd. (a)), and admitted the allegation that he was previously convicted of the same violation within the last seven years (§ 273.5, subd. (f)(1)), and one count of willfully, unlawfully and knowingly violating a court order obtained to prevent domestic violence (§ 273.6, subd. (a)). The plea agreement in each case specified an agreed prison sentence of seven years for all three cases collectively.
As the factual basis for the plea in case No. SCN353387, Zavala admitted that he "willfully and unlawfully inflicted corporal injury resulting in a traumatic condition against a person I had a dating relationship with and suffered a prior conviction for the same and willfully and unlawfully violated a domestic violence court order."
Zavala failed to appear for sentencing and was arrested. At sentencing, the trial court declared Zavala to be in violation of the Cruz waiver contained in the plea agreements and imposed a total prison term of seven years eight months. Specifically, in case No. SCN353387 the trial court imposed a five-year prison term; in case No. SCN354747 the trial court imposed a consecutive term of two years eight months; and in case No. SCN356869 the trial court imposed a concurrent term of two years.
In People v. Cruz (1988) 44 Cal.3d 1247, 1254, footnote 5, our Supreme Court stated that a defendant may enter into a knowing and intelligent waiver, under which "if the defendant willfully fails to appear for sentencing the trial court may withdraw its approval of the defendant's plea and impose a sentence in excess of the bargained-for term."
At the People's request, the trial court entered a 10-year criminal protective order in case No. SCN353387 using the Judicial Council form provided for that purpose. As indicated by the boxes checked on that form, Zavala was prohibited from the following contact with the victim, E.C., for a period of 10 years: "must have no personal, electronic, telephonic, or written contact"; "must have no contact . . . through a third party, except an attorney of record"; "must not come within 100 yards"; and "[o]ther orders including stay away orders from specific locations: home, employment, school, vehicle."
The full name of the victim is set forth in the protective order. We use initials here to protect the victim's privacy.
Zavala simultaneously filed notices of appeal in cases Nos. SCN353387, SCN356869 and SCN354747. Because Zavala appeals from post-guilty-plea matters in three cases that were handled together during a single sentencing hearing in the trial court, we consider the three appeals under a single appellate court case number, although we have not consolidated the appeals.
II.
DISCUSSION
A. The Challenge to the Protective Order in Case No . SCN353387 Lacks Merit
Although Zavala filed notices of appeal in all three cases for which he was sentenced on October 31, 2016, and filed one appellate brief listing all three superior court cases, the issue he raises in his appellate brief concerns only the protective order issued in case No. SCN353387.
Zavala contends that the protective order is unconstitutionally vague because it "fails to state locations and vehicles [Zavala] is to avoid" and does not contain "an explicit requirement that [Zavala] 'know' he is in the presence of the victim, or within 100 yards of her home, work, car or school."
As the People acknowledge, Zavala's failure to object to the protective order on vagueness grounds in the trial court does not forfeit the issue on appeal because a vagueness challenge can be resolved as a matter of law. (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).)
"[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' . . . The rule of fair warning consists of 'the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' . . . , protections that are 'embodied in the due process clauses of the federal and California Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7).' " (Sheena K., supra, 40 Cal.4th at p. 890, citations omitted.) 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).)
Our Supreme Court recently decided a case closely bearing on Zavala's vagueness argument, explaining that we may look to sources outside of the document itself when determining whether a proscription on the defendant's future actions is unconstitutionally vague in that it lacks an explicit knowledge requirement. Specifically, in Hall the defendant argued that a probation condition barring him from possessing firearms or illegal drugs was unconstitutionally vague because it did not explicitly 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 . . . including judicial construction of similar provisions." (Id. at p. 500, citation omitted.) Hall explained that relevant case law already construed probation conditions involving the possession of firearms 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." (Id. at p. 503.) Hall concluded that "[g]iven this legal backdrop . . . the firearms and narcotics conditions are not unconstitutionally vague." (Id. at p. 501.) Further, "[b]ecause no change to the substance of either condition would be wrought by adding the word 'knowingly,' " Hall "decline[d] defendant's invitation to modify those conditions simply to make explicit what the law already makes implicit." (Id. at p. 503.)
Although the instant case involves a challenge to the terms of a protective order rather than the terms of a probation condition, we apply the same approach as approved in Hall in analyzing Zavala'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.
Here, the statute containing the penalty for violating a criminal protective order serves to establish an implicit knowledge requirement in the protective order. Section 166, subdivision (c) provides the penalty for violating a criminal protective order, stating that the violation constitutes a crime only if it is "willful and knowing." (§ 166, subd. (c)(1).) Specifically, the statute provides that "a willful and knowing violation of a protective order or stay-away court order described as follows shall constitute contempt of court, a misdemeanor, punishable by imprisonment in a county jail for not more than one year, by a fine of not more than one thousand dollars ($1,000), or by both that imprisonment and fine." (Ibid.) Under this provision, violation of a protective order necessarily requires proof that the violation was knowing and willful, and therefore any knowledge requirement is implicit in the protective order itself.
The cases that Zavala cites are inapposite, either (1) because they concern vagueness problems not present here, such as failing to identify the persons from whom the defendant is to stay away (People v. Rodriguez (2013) 222 Cal.App.4th 578, 595 [probation order did not sufficiently specify which victims were the subject of the order]; or (2) because they were decided before Hall, supra, 2 Cal.5th 494, established that a court could look to extrinsic sources to establish an implicit knowledge requirement in an order barring the defendant from certain actions (People v. Petty (2013) 213 Cal.App.4th 1410, 1424-1425 [adding explicit knowledge requirement to protective order at defendant's request prior to Hall opinion]).
Zavala argues in his reply brief that although the People have identified section 166, subdivision (c) as support for implying a knowledge requirement in the protective order, that statutory provision only describes the misdemeanor crime of violating a protective order. As Zavala points out, the Judicial Council form on which the protective order is set forth states that violating the order may also constitute a felony. According to Zavala, the People have not identified the statute containing the felony penalty, and thus have not shown that a felony violation of a protective order also includes an explicit knowledge requirement. We reject the argument because the felony penalty for violation of a protective order is set forth in section 166, subdivision (c)(4), which states that a "second or subsequent conviction for a violation of an order described in paragraph (1) occurring within seven years of a prior conviction for a violation of any of those orders and involving an act of violence or 'a credible threat' of violence" may be punished as a felony. As this provision expressly incorporates section 166, subdivision (c)(1), it also incorporates the knowledge requirement.
In an additional argument, Zavala contends that the protective order is unconstitutionally vague because it does not specifically identify E.C.'s home address, work address, school address and the description of her vehicle so that he can stay away from them, and it does not provide for an update of that information as it changes over the next 10 years. In light of the implicit knowledge requirement in the protective order, Zavala's argument lacks merit. Because Zavala will violate the protective order only if he knowingly fails to stay away from those locations, he does not need to be apprised of E.C.'s home, work school and vehicle information to avoid an inadvertent violation of the protective order. B. No Arguable Issues Are Present in Cases Nos . SCN356869 and SCN354747
As we have explained, the brief filed by Zavala's counsel in this appeal covered the judgments in three separate superior court cases but identified no arguable appellate issues in cases Nos. SCN356869 and SCN354747. Accordingly, we have followed the procedure set forth in People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 and have conducted an independent review of the record. Our review of the record has disclosed no reasonably arguable appellate issues. Accordingly, we affirm the judgments in cases Nos. SCN356869 and SCN354747.
Although the normally followed procedure is for counsel to file a brief stating that no arguable issues have been identified, we nevertheless follow the procedures described in Wende here, as our Supreme Court in Wende stated that "[a]lthough a statement of counsel's efforts and failure to find any arguable issues might be helpful, we do not interpret [case law] as requiring that. Counsel's inability to find any arguable issues may readily be inferred from his failure to raise any." (Wende, supra, 25 Cal.3d at p. 442.) Here, as in Wende, we infer that counsel was unable to find any arguable issues based on the absence of any such discussion in the appellate brief.
DISPOSITION
The judgments are affirmed.
IRION, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.