P. v.
Filed 2/27/13 P. v. Campos 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opinion has not been certified for publication or ordered published for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.
JOSE CAMPOS,
Defendant and
Appellant.
H038502
(Monterey County
Super.
Ct. No. SS111573)
Jose
Campos, also known as Xavier Campos
and Jose Xavier Campos, the defendant herein, appeals after pleading guilty to
an aggravated assault charge arising
out of a gang-influenced altercation with a stranger who happened to be in
defendant’s vicinity.
Counsel for defendant
originally filed a Wende appeal,
i.e., a brief that, pursuant to People
v. Wende (1979) 25 Cal.3d
436, stated the case and facts but raised no issues. We notified defendant of his
own behalf. He did not do so.
After the time to receive
any reply from defendant himself had expired, we reviewed the record as required by People v. Wende, supra, 25 Cal.3d 436, and People v. Kelly (2006) 40 Cal.4th 106. When we undertook this review, we noticed a
number of questionable probation conditions and sought supplemental briefing
from the parties.
We will modify certain probation conditions and, with those modifications,
affirm the judgment.
PROCEDURAL BACKGROUND AND FACTS
Defendant
pleaded guilty to a charge of assault with force likely to produce great bodily
injury. (Pen. Code, former § 245,
subd. (a)(1); Stats. 2004, ch. 494, § 1, p. 4040.) The trial court suspended imposition of
sentence and placed him on three years’ formal probation, one condition of
which was to serve 90 days in county jail.
The court also imposed a number
of other probation conditions, which are discussed more fully below.
Because
defendant pleaded guilty, we derive the facts from the preliminary examination
transcript. About 1:00 a.m. on August 13, 2011, the victim reported
that defendant shoved him and threatened to shoot him. The incident occurred after the victim, while
driving home, noticed a car full of people parked in the dark across the street
from his house. The circumstances caught
his attention and he slowed to get a better look at the car and its
occupants. The victim then pulled into
his driveway. Defendant, who was driving
the suspicious car, pulled in behind the victim, emerged, and shoved the
victim. Defendant said, according to the
testimony of a police officer at the preliminary examination, “What’s your
problem, homie? You want to get shot
up? . . . I’ll smoke you. I’m going to get a gun and shoot you right
now. Who do you claim? [¶]
. . . I claim
Norte.†The latter was, of course,
defendant’s identification of himself as a member of the Norteño
one of the occupants of defendant’s car urged that they leave. When defendant was placed in jail, he told
jail authorities that he was a Norteño.
DISCUSSION
After considering the
parties’ supplemental briefing, we conclude that the trial court erred in
imposing certain probation conditions.
We will quote the conditions below and show how we are modifying them.
A reviewing court reviews
a trial court’s imposition of a probation condition under one of two different
standards. The applicable standard
depends on the condition’s effect on a defendant’s civil liberties. A “ ‘probation condition that imposes
limitations on a person’s constitutional rights must closely tailor those
limitations to the purpose of the condition to avoid being invalidated as
unconstitutionally overbroad.’ †(People
v. Olguin (2008) 45 Cal.4th 375, 384.)
All others are reviewed for abuse of discretion, i.e., “[w]e do not
apply such close scrutiny in the absence of a showing that the probation
condition infringes upon a constitutional right . . . [and]
absent such a showing . . . simply review[] such a condition for abuse of discretion, that is, for an
indication that the condition is ‘arbitrary or capricious’ or otherwise exceeds
the bounds of reason under the circumstances.â€
(Ibid.) The court may
“impose conditions to foster rehabilitation and to protect public safety.†(People v. Carbajal (1995) 10 Cal.4th
1114, 1120.) No abuse of discretion is
likely to be found unless the following three conditions all are
satisfied: the probation condition
“ ‘ “(1) has no relationship to the crime of which the offender was
convicted, (2) relates to conduct which is not in itself criminal, and (3)
requires or forbids conduct which is not reasonably related to future
criminality. . . .†[Citation.]’ †(Olguin, supra, at
p. 379.)
Whichever of these two
categories of review a probation condition falls under, i.e., review of a claim
of substantive constitutional problems or a claim of abuse of discretion under
state law, due process considerations require (In re Sheena K.
(2007) 40 Cal.4th 875, 889-892) that probation conditions contain “an express
requirement of knowledge†(id. at p. 891) lest, as a result of a
condition that lacks “ ‘reasonable specificity’ †(id. at
p. 890, italics deleted), the probationer unwittingly violate a condition
and be subjected to “ ‘arbitrary law enforcement.’ †(Ibid.)
It is the oral pronouncement of probation
conditions that informs a defendant’s probation terms (People v. Farell
(2002) 28 Cal.4th 381, 384, fn. 2; but see People v. Smith (1983)
33 Cal.3d 596, 599), and on appeal it is the oral pronouncement we must
consider (Farell, supra, at p. 384, fn. 2) for any
infirmities.
The conditions, as orally
pronounced by the trial court, include these, which we number from one to six
for purposes of this opinion:
First probation
condition: “Not use or possess alcohol, narcotics, intoxicants, or other controlled
substances without the prescription of a physician . . . .â€
Second
probation condition: “Not possess,
receive, or transport any firearm, ammunition, or any deadly or dangerous
weapon. Immediately surrender any
firearms or ammunition you own or possess to law enforcement.â€
Third probation condition: “You’re not to annoy, molest, attack,
strike, threaten, harass, stalk, sexually assault, batter, or disturb the peace
of John Doe.â€
Fourth
probation condition: “Have no direct or
indirect contact with the victim, including telephone—or contact by telephone,
writing, computer, or through another person.â€
Fifth
probation condition: “Stay away at least
100 yards from the victim, the victim’s residence, their place of employment,
and any vehicle the victim owns or operates.â€
Sixth
probation condition: “You’re not to have
access to, use, or possess any police scanner device or surveillance equipment
on your person, vehicle, place of residence, or personal effects.â€
Each of the foregoing
provisions lacks a knowledge requirement that defendant can reasonably be
expected to satisfy through the use of his own faculties. The provisions may also be problematic for other
reasons. We will consider each provision
in turn.
Regarding the first
probation condition, defendant could violate it by wearing a borrowed coat or
borrowing a car in which someone has left a controlled substance or by drinking
alcoholic punch at a party that someone assured him contained no alcohol. It will be modified to provide: “Not
knowingly use or possess alcohol, narcotics, or intoxicants, nor knowingly use
or possess prescribable controlled substances without the prescription of a
physician . . . .â€
Regarding
the second probation condition, defendant could violate it by receiving a
shipment of ammunition that he never ordered or borrowing a car that has a gun
secreted somewhere and, by driving it, transporting the gun. Also, things like chlorine bleach, a baseball
bat, or a wrench can become deadly and dangerous weapons when misused, but are
not intrinsically deadly and dangerous weapons and are items that defendant
could possess, receive, or transport for legitimate
purposes.
The problem of how to manage
people’s involvement with potential weapons that have innocuous uses is not new
to the law. Our Supreme Court has
explained: “Some few objects, such as
dirks and blackjacks, have been held to be deadly weapons as a matter of law;
the ordinary use for which they are designed establishes their character as
such. [Citation.] Other objects, while not deadly per se, may
be used, under certain circumstances, in a manner likely to produce death or
great bodily injury. In determining
whether an object not inherently deadly or dangerous is used as such, the trier
of fact may consider the nature of the object, the manner in which it is used,
and all other facts relevant to the issue.â€
(People v. Aguilar (1997) 16
Cal.4th 1023, 1029.) Objects that are
not ordinarily used as weapons were discussed in People v. Graham (1969) 71 Cal.2d 303, disapproved on other grounds
according to Aguilar,
the second class, such as ordinary razors, pocket-knives, hatpins, canes,
hammers, hatchets and other sharp or heavy objects, which are not weapons in
the strict sense of the word and are not “dangerous or deadly†to others in the
ordinary use for which they are designed, may not be said as a matter of law to
be “dangerous or deadly weapons.†When
it appears however, that an instrumentality other than one falling within the
first class is capable of being used in a “dangerous or deadly†manner, and it
may be fairly inferred from the evidence that its possessor intended on a
particular occasion to use it as a weapon should the circumstances require, we
believe that its character as a “dangerous or deadly weapon†may be thus
established, at least for the purposes of that occasion.’ [Citation.]â€
(Graham, supra, 71 Cal.2d at pp. 327-328.)
We
are concerned that the condition provides inadequate notice with regard to
those objects whose ordinary use is not for the purpose of inflicting injury or
death yet are capable of being used to inflict injury or death if so
intended. To avoid any constitutional
vagueness or overbreadth problem, we will make explicit the prohibition against
possessing such objects with wrongful intent.
The condition will be modified to provide: “You shall not knowingly possess any object
that you know is a dangerous or deadly weapon, any object that you know can be
used to cause bodily injury or death when you intend such harm, or any type of
ammunition. Immediately surrender any
firearms or ammunition that you know you own or possess or that you discover in
your possession to your probation officer or other law enforcement
authorities.â€
Regarding the third
probation condition, defendant could annoy or disturb the peace of the victim
with no awareness of doing so, e.g., by honking his horn in a line of cars one
of which, unknown to defendant, is being operated by the victim. We will modify the condition to provide: “You’re not to knowingly annoy, molest,
attack, strike, threaten, harass, stalk, sexually assault, batter, or disturb
the peace of John Doe.â€
Regarding
the fourth probation condition, having no “direct or indirect contact with the
victim†is exceedingly broad and lacks a knowledge element. It would have been difficult to comply with before
the advent of the Internet and social media, but is even more difficult to
comply with now that group communication through social media is
commonplace. Even without using social
media, defendant could inadvertently violate this condition by walking along a
sidewalk and encountering the victim. To
provide meaningful notice of prohibited conduct, the condition will be modified
to provide: “Do not knowingly engage in
direct or indirect contact with the victim, whether in person, in writing, on a
computer, or through another person. If
a direct contact occurs, immediately remove yourself from the victim’s
presence. If an indirect contact occurs,
immediately disengage from that contact.â€
Regarding
the fifth probation condition, defendant could be found in violation for
parking his car within 100 yards of the victim’s car in a public place without
knowing that the car belongs to the victim or, in the case of a crowded
shopping mall parking lot, without seeing the victim’s car even if he knows
whom it belongs to. The condition will
be modified to provide: “Do not
knowingly come within 100 yards of the victim, his residence, his vehicles, and
his places of employment.â€
The
sixth probation condition lacks a knowledge element and the reference to
surveillance equipment is overbroad, because a set of binoculars used for
birdwatching is arguably surveillance equipment, even if the bearer means only
to watch birds. It will be modified to
provide: “You’re not to knowingly have
access to, use, or possess any police scanner device or any surveillance
equipment that you intend to use to monitor the police, whether on your person,
in your vehicle, at your place of residence, or among your personal effects.â€
The People propose that, instead of modifying the probation
conditions seriatim, we 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 court concluded that it will no longer entertain challenges to probation
conditions lacking an explicit knowledge requirement and will simply “construe
every probation condition proscribing a probationer’s presence, possession,
association, or similar action to require the action be undertaken
knowingly.†(Id. at p. 960.)
The Supreme Court faced the issue of the lack of a knowledge
requirement in a probation condition and the remedy it mandated was, in our
view, unequivocal: “[W]e agree with the
Court of Appeal that modification to
impose an explicit knowledge requirement is necessary to render the condition
constitutional.†(
p. 892.) Until the Supreme Court
rules differently, we must follow Sheena K.
on this point.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
modifications described above, we will affirm the judgment.
probation conditions are hereby modified.
condition in which the trial court
stated, “Not use or possess
alcohol, narcotics, intoxicants, or other controlled substances without the
prescription of a physician†is modified to provide, “Not knowingly use or
possess alcohol, narcotics, or intoxicants, nor knowingly use or possess
prescribable controlled substances without the prescription of a physician.â€
condition in which the trial court stated, “Not possess, receive, or transport
any firearm, ammunition, or any deadly or dangerous weapon. Immediately surrender any firearms or
ammunition you own or possess to law enforcement†is modified to provide, “You
shall not knowingly possess any object that you know is a dangerous or deadly
weapon, any object that you know can be used to cause bodily injury or death
when you intend such harm, or any type of ammunition. Immediately surrender any firearms or
ammunition that you know you own or possess or that you discover in your
possession to your probation officer or other law enforcement authorities.â€
condition in which the trial court stated, “You’re not to annoy, molest,
attack, strike, threaten, harass, stalk, sexually assault, batter, or disturb
the peace of John Doe†is modified to provide, “You’re not to knowingly annoy,
molest, attack, strike, threaten, harass, stalk, sexually assault, batter, or
disturb the peace of John Doe.â€
condition in which the trial court stated, “Have no direct or indirect contact
with the victim, including telephone—or contact by telephone, writing,
computer, or through another person†is modified to provide, “Do not knowingly
engage in direct or indirect contact with the victim, whether in person, in
writing, on a computer, or through another person. If a direct contact occurs, immediately
remove yourself from the victim’s presence.
If an indirect contact occurs, immediately disengage from that contact.â€
condition in which the trial court stated, “Stay away at least 100 yards from
the victim, the victim’s residence, their place of employment, and any vehicle
the victim owns or operates†is modified to provide, “Do not knowingly come
within 100 yards of the victim, his residence, his vehicles, and his places of
employment.â€
condition in which the trial court stated, “You’re not to have access to, use,
or possess any police scanner device or surveillance equipment on your person,
vehicle, place of residence, or personal effects†is modified to provide, “You’re
not to knowingly have access to, use, or possess any police scanner device or
any surveillance equipment that you intend to use to monitor the police,
whether on your person, in your vehicle, at your place of residence, or among
your personal effects.â€
modifications, the judgment is affirmed.
J.
