P. v. Barriga
Filed 2/26/13 P. v. Barriga CA6
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opinion has not been certified for publication or ordered published for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
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JESUS BARRIGA,
Defendant and
Appellant.
H037613
(
Super. Ct.
No. SS111869A)
In this
appeal appellant challenges as vague a probation
condition that requires him to "[t]otally abstain from the use of
alcoholic beverages, not purchase or possess alcoholic beverages, and stay out
of places you know alcohol to be the main item of sale." Appellant urges this court to modify the
first part of the condition to include a knowledge requirement.
Even though
appellant did not object to the condition at issue when it was imposed, the
forfeiture rule does not apply when a probation condition is challenged as
unconstitutionally vague on its face and the
question of law without reference to the sentencing record. (In re Sheena K. (2007) 40 Cal.4th
875, 888–889 (Sheena K.).)
For reasons
that follow we modify the challenged probation condition, which is designated
probation condition "8" in the probation officer's report and the
minute order from the sentencing hearing.
The facts
underlying appellant's conviction are not relevant to this
We note, however, that pursuant to a negotiated disposition appellant
pleaded no contest to one count of assault with force likely to cause great
was promised felony probation.
On November 9, 2011, at appellant's
sentencing hearing, the court suspended imposition of sentence and placed
appellant on probation on various terms and conditions including a 120 day
county jail term. As noted, one of the
conditions of probation as announced by the court requires appellant to
"[t]otally abstain from the use of alcoholic
beverages, not purchase or possess alcoholic beverages, and stay out of
places you know alcohol to be the main item of sale."
Respondent
argues that appellant has forfeited any challenge to this condition by failing
to object when the condition was imposed.
Respondent asserts that this court should limit the exception to the
forfeiture rule found in
40 Cal.4th at page 889, to cases in which only First Amendment rights are
implicated. Respondent cites to no
relevant authority to support this proposition.
Respondent
argues that restricting challenges on direct appeal to probation conditions
implicating First Amendment rights would not leave others without a remedy
because of the opportunity to litigate the issue during revocation proceedings. We are not persuaded.
Alternatively,
respondent invites this court to adopt the approach of the Third District Court
of Appeal in People v. Patel (2011)
196 Cal.App.4th 956, 960-961. In that case, the Third District considered
whether a probation condition ordering that the defendant not drink alcohol,
possess it, or be in a place where it was the chief item of sale was invalid
because it lacked a knowledge requirement.
(Id. at p. 959.) The court expressed its frustration with the
"dismaying regularity" with which "we still must revisit the
issue in orders of probation" that do not include a qualification that the
defendant must commit the proscribed conduct knowingly. (Id.
at p. 960.) Noting that "there
a matter of law, that a probationer cannot be punished for presence,
possession, association, or other actions absent proof of scienter" (
issue on appeal" (ibid.) and,
moving forward, it would "construe every probation condition proscribing a
probationer's presence, possession, association, or similar action to require
the action be undertaken knowingly" (ibid.),
without modifying a probation order that "fails to expressly include such
a scienter requirement." (
v. Moses (2011) 199 Cal.App.4th 374, 381, the Fourth District declined to
adopt the Patel approach, choosing
instead to modify probation conditions to include a knowledge requirement.
While we too are frustrated by how
frequently this issue arises and, in these days of strained budgets, we agree
that the interests of fiscal and judicial economy are critical, we decline to
follow the Third District's approach in Patel. Our Supreme Court faced the issue of the lack
of a knowledge requirement in a probation condition and the remedy it mandated
was unequivocal: "[W]e agree with
the Court of Appeal that modification to impose an explicit knowledge
requirement is necessary to render the condition constitutional." (Sheena K., supra, 40 Cal.4th at p. 892, italics added.) Until our Supreme Court rules differently, we
will follow its lead on this point. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
"In
granting probation, courts have broad discretion to impose conditions to foster
rehabilitation and to protect public safety pursuant to Penal Code section
1203.1. [Citations.]" (People v.
Carbajal (1995) 10 Cal.4th 1114, 1120–1121; People v. Leon (2010)
181 Cal.App.4th 943, 948 (Leon).)
Nevertheless, probation conditions may be challenged on the ground of
unconstitutional vagueness. (People
v. Lopez (1998) 66 Cal.App.4th 615, 630.)
"[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. [Citations.]'
[Citation.]" (Sheena K.,
at p. 890.)
We continue
to adhere to the view that in order to pass constitutional muster, a
requirement of knowledge should be included in some probation conditions
prohibiting the possession or use of specified items. The law has no legitimate interest in
punishing a probationer who has no knowledge that he is using or possessing a
prohibited item. Knowledge requirements
in probation conditions "should not be left to implication." (People v. Garcia (1993) 19
Cal.App.4th 97, 102.) Absent a
requirement that a probationer know he is disobeying the condition, he is
vulnerable, and unfairly so, to punishment for unwitting violations of it. (See People v. Lopez, supra, 66
Cal.App.4th at pp. 628–629.)
An
appellate court is empowered to modify a probation condition in order to render
it constitutional. (Sheena K., supra,
40 Cal.4th at p. 892.)
In this
case, we will modify probation condition "8" to include a knowledge
requirement.
Disposition
The
judgment is modified to reflect the following change to probation condition 8:
from the use of beverages you know, or reasonably should know, to be alcoholic;
do not purchase or possess any beverage you know, or reasonably should know, to
be alcoholic; stay out of places where you know, or reasonably should know,
that alcohol is the main item of sale."
As so modified the judgment (order of probation) is affirmed."
_________________________________
ELIA,
J.
WE CONCUR:
______________________________
RUSHING, P. J.
______________________________
PREMO, J.
name="_ftn1" title="">[1] Respondent's reliance on
the Supreme Court considered a challenge to a probation condition that required
the defendant to notify his probation officer of any pets that were present in
the home. (Id. at p. 378.) The
condition was challenged on various grounds such as not being reasonably
related to future criminality, that it limited the defendant's fundamental
rights, and was unconstitutionally overbroad.
(Ibid.) The defendant invited the court to determine
whether the condition was closely tailored to achieve its legitimate purpose of
his rehabilitation and protection of the probation officer. The court refused to apply such close
scrutiny in the absence of a showing that the probation condition infringed
upon a constitutional
the court simply reviewed such a condition for abuse of discretion. (Id.
at p. 384.) Respondent seizes upon this
to argue that the Supreme Court has recognized that not all probation
conditions merit equal scrutiny. Nothing
in Olguin invalidates the holding in
different levels of scrutiny are available for conditions that are challenged
on reasonableness grounds does not support imposition of a forfeiture rule
unless the condition implicates First Amendment rights. Appellant is not asking for a heightened
level of constitutional scrutiny.
Rather, he is asking that his due process rights be protected.
