P. v. Chavez
Filed 1/29/14 P. v. Chavez CA3
NOT TO BE PUBLISHED
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
THIRD
APPELLATE DISTRICT
(Yuba)
----
THE
PEOPLE,
Plaintiff and Respondent,
v.
MARIAH
ANN MARIE CHAVEZ,
Defendant and
Appellant.
C073018
(Super. Ct. No.
CRF12509)
Defendant
Mariah Ann Marie Chavez pled no contest to assault by means of force likely to
produce great bodily and received four years of formal probation, including 180
days in county jail. Her probation
conditions included the following: “You
shall not be adjacent to any school campus during school hours unless you are
enrolled or with prior written permission of the school administration or probation.”[1]
Relying
on People v. Barajas (2011) 198 Cal.App.4th
748, 760-763 (Barajas), defendant
contends that “adjacent to” is unconstitutionally
vague and should be replaced by “within 50 feet of.” The People contend that “adjacent to” is not
vague, but suggests that if we conclude otherwise we should modify the
condition in a manner consistent with Barajas.
We
agree with defendant and Barajas that
“adjacent to,” in the context of this probation condition, is impermissibly
vague. But on this record we cannot say
whether defendant’s proposed modification is appropriate. Furthermore, because the record does not show
that defendant has ever committed an offense on or near a school campus, we
cannot determine whether the probation condition was appropriately imposed. We therefore remand with directions that the
trial court reconsider whether this condition should be imposed, and if so, to
modify the condition in light of the facts of the case and the purpose of the
restriction to be imposed on defendant.
FACTUAL AND PROCEDURAL BACKGROUND
The
present crime is defendant’s first adult offense. However, defendant has an extensive juvenile
record, including two misdemeanor batteries (one on a juvenile, the other on a
young adult), and a misdemeanor resisting an officer offense stemming from a
reported fight among a number of juveniles, including defendant.[2] A search of her residence over a year before
the present crime found terms associated with the Norteño street
gang written on her bedroom walls.
According
to the probation report, the present offense and the prior battery on a
juvenile occurred on the street in Yuba City where
defendant lives. The mass fight/resisting
incident occurred at an address in Marysville.
The location of the other prior battery is not given. It is not stated whether any of the
identified locations are on or near a school campus.
In
the present case, according to the probation report, the victim was walking
down the street with another person at around 9:00 p.m. on August 6, 2012. Defendant and her sisters
came out of their home. Defendant yelled
obscenities at the victim, walked up behind her, grabbed her by the hair, and started
punching her in the face. The victim
lost consciousness and fell to the ground.
Defendant started kicking her in the ribs and abdomen. Regaining consciousness, the victim tried to
get up. Defendant kneed her in the face,
again knocking her out, and continued the assault. In an attempt to stop the attack, the victim
told defendant falsely that she was pregnant.
Defendant ceased kicking her, but said she would “fuck [the victim] up”
again when the victim was no longer pregnant.
After the victim reported the incident to the police, defendant admitted
the offense but claimed the victim had threatened to attack defendant first.
The
probation report recommended that if defendant received probation, conditions
barring association with gangs and gang members should be imposed.[3] In the middle of the
paragraph setting out those conditions is the following provision (the only one
that does not mention gangs): “You shall
not be adjacent to any school campus during school hours unless you are
enrolled or with prior written permission of the school administration or
probation.”
At
defendant’s sentencing hearing, her counsel objected to the anti-gang
conditions in general, asserting that the present offense was not gang-related
and the anti-gang conditions were not rationally related to her probation. Counsel did not specifically mention the
“adjacent to any school campus” provision.
The
trial court found the anti-gang conditions appropriate in light of defendant’s
history of gang ties. The court then
orally recited them as stated in the probation
report, including the “adjacent to any school campus” provision.
DISCUSSION
I
Probation Condition Is Not Forfeited
A
probation condition may be challenged on constitutional grounds for the first
time on appeal if the challenge presents a pure
question of law. (
p. 753, citing In re Sheena K. (2007)
40 Cal.4th 875, 888-889.) The
parties agree that defendant’s vagueness challenge falls within this rule. So do we.
Therefore, even though trial
counsel did not object specifically to the “adjacent to any school campus”
provision, defendant’s challenge to that condition is properly before us.
II
Probation Condition, Is Unconstitutionally Vague
In
which is directly on point and
dispositive, the court concluded that the term “adjacent to,” as used in a
probation condition, is impermissibly vague.
The court reasoned under general constitutional principles, a statutory
phrase is vague or overbroad if it is “subject to a number of interpretations,”
contains no standard for determining what a person must do in order to comply
with it, and “vests virtually complete discretion in the hands of [the
enforcing authorities]” to determine whether the person has done so. (Barajas,
at p. 760; see In re Sheena K., supra,
40 Cal.4th at p. 890 [probation conditions].) According to dictionary definitions, “ ‘adjacent’
” generally means “ ‘close to,’ ” “ ‘lying near,’ ” “ ‘next to,’ ” or “ ‘adjoining’
”; however, it can also mean merely “ ‘not distant: nearby.’ ”
(Barajas, at pp. 760-761.) Thus, “where to draw the line in the continuum
from adjacent to distant is subject to the interpretation of every individual
probation officer charged with enforcing this condition.” (Id.
at p. 761.) “While a person on the
sidewalk outside a school is undeniably adjacent to the school, a person on the
sidewalk across the street, or a person in a residence across the street, or
two blocks away could also be said to be adjacent.” (Ibid.)
Therefore, the probation condition
required modification “[t]o avoid inviting arbitrary enforcement and to provide
fair warning of what locations should be avoided.” (Ibid.)
The
court concluded that the People’s alternative proposal (“Do not knowingly be on
or within 50 feet of a school campus . . . .”
would givethe defendant sufficient guidance and ordered the condition to be so modified. (Barajas,
supra, 198 Cal.App.4th at pp. 761-763.) The court noted, however, that the 50-foot
distance was not “a constitutional threshold” and that other modifications
might work as well (e.g., “ ‘30 feet,’ ” “ ‘20 yards,’ ” “ ‘on,’ ” “ ‘one block
away,’ ” or “ ‘the 1200 block of Main Street’ ”
. (Id.at p. 762, fn. 10.)
The
People assert here that, when viewed in context, the term “adjacent to” is
reasonably specific and gives adequate notice of what conduct is prohibited. However, they do not cite any cases on
point. They also do not address
context of the probation condition at issue, “adjacent to” could reasonably be
taken to mean anything from next to a campus to two blocks away” (Barajas,
supra, 198 Cal.App.4th at p. 761.)
III
Determine Whether The Probation Condition
Imposed And Act Accordingly
The
parties agree that if we decide the probation condition at issue needs to be
modified, the modification adopted in Barajas,
-- replacing “adjacent to” by “within 50 feet of” -- would be appropriate. But on this record, we cannot say whether
this modification or some other would best serve the purpose of the probation
condition, because we cannot tell what that purpose is supposed to be. As we have explained, the record does not show
that defendant has ever committed an offense on or near a school campus. So far as the condition at issue was meant to
relate to the anti-gang conditions that surround it, it does not appear to add
anything material that those conditions do not already cover.
We
remand the matter to the trial court with directions to reconsider whether the
probation condition at issue is appropriate on the facts of this case. If the court finds that the condition is
appropriate, the court is directed to modify it in keeping with
pages 762-763 and footnote 10. If the
court finds that the condition is not appropriate, the court is directed to
delete it.
DISPOSITION
The
matter is remanded to the trial court for further proceedings consistent with this
opinion.
ROBIE ,
J.
We concur:
HULL , Acting P. J.
MAURO , J.
[1] The sentencing minute
order cites to “item #14” of the probation report, where this condition appears
as stated above. However, the trial
court orally amended it to “prior written permission of your probation officer
on remand, it will need to decide whether it intends to modify the condition in
this respect.
[2] Defendant’s juvenile
record also includes shoplifting offenses at local stores.
