P. v. Nava





















Filed 12/28/12 P.
v. Nava CA6

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>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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




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THE PEOPLE, Plaintiff and Respondent, v. ARTURO NAVA, Defendant and Appellant.

H037683 (Monterey County Super. Ct. No. SS110508A)

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>I. INTRODUCTION

Defendant
Arturo Nava pleaded no contest to assault
with a deadly weapon (former Pen. Code, § 245, subd. (a)(1)).href="#_ftn1" name="_ftnref1" title="">[1] On September 30, 2011, the trial court
imposed a three-year prison sentence, suspended execution of the sentence, and
placed defendant on probation for three years with various terms and
conditions. Relevant to this appeal, the
probation conditions generally prohibit defendant from possessing alcohol and
controlled substances, and require that he stay away from the victims. The court granted defendant 301 days of
presentence custody credits,
consisting of 201 actual days plus 100 days conduct credit under section
4019.

On
appeal, defendant contends that the probation conditions restricting his
possession of alcohol and controlled substances and requiring that he stay away
from the victims are unconstitutionally vague and/or overbroad. He also argues that he is entitled to
additional conduct credit under the October 2011 version of section 4019.

For
reasons that we will explain, we will modify the judgment relating to the
ordered conditions of probation and affirm the judgment as so modified.

>II. FACTUAL AND PROCEDURAL BACKGROUND

As
defendant was convicted by plea, the summary of his offense is taken from the
probation report, which was based on a report by the Salinas Police
Department. In March 2011, defendant
visited his son and his son’s wife.
After drinking all night with his son, defendant cut his son’s neck with
a small pocket knife and thereafter chased him with the knife in hand.

In
July 2011, defendant was charged by information with assault by means of force
likely to produce great bodily injury
or with a deadly weapon (former § 245, subd. (a)(1)). The information further alleged that
defendant used a dangerous and deadly weapon, a knife, in the commission of the
offense (§§ 667, 1192.7). On September
15, 2011, defendant pleaded no contest to the assault count and admitted the
accompanying allegation, after the court indicated that it would sentence
defendant to three years, suspend execution of the sentence, and place
defendant on probation with various terms and conditions, including that he
serve one year in jail followed by residential treatment.

On
September 30, 2011, the trial court sentenced defendant to the middle term of
three years, suspended execution of the sentence, and placed defendant on
probation for three years with various terms and conditions, including that he
not possess alcohol, that he not possess controlled substances except as
specified, and that he stay away from his son and his son’s wife. The court granted defendant 301 days of
presentence custody credits, consisting of 201 actual days plus 100 days
conduct credit.

>III. DISCUSSION

>A. >Probation Conditions

Defendant
challenges certain probation conditions restricting the possession of alcohol,
the possession of controlled substances, and his contact with the victims, on
the grounds that the conditions are unconstitutionally vague and/or overbroad.>

As
relevant to defendant’s contentions on appeal, the trial court orally stated
defendant’s probation conditions at the September 30, 2011 sentencing hearing as follows:
“You will not possess or consume any alcohol. [¶]
And you will stay away from all locations where the sale or consumption
of alcohol is the primary business.
[¶] You’ll also not possess or
consume any controlled substance except under a doctor’s direction. [¶]
And you’ll not associate with anyone you know to traffic in or consume
illegal drugs. [¶] . . . [¶] You’ll stay at least 100 yards from [your son
and your son’s spouse] and their residence, vehicles, and places of
employment.”

In
the minute order of the September 30, 2011 sentencing
hearing, which was signed and dated by the trial court on October 11, 2011, the probation conditions concerning alcohol, controlled
substances, and the victims are stated as follows:

“7. Totally abstain from the use of alcoholic
beverages, not purchase or possess alcoholic beverages, and stay out of places
when it is the main item of sale.

“8. Not use or possess alcohol/narcotics,
intoxicants, drugs, or other controlled substances without the prescription of
a physician; not traffic in, or associate with [persons] known to defendant to
use or traffic in narcotics or other controlled substances.

“[¶] . . .
[¶] 12. Stay away at least 100 yards from victim,
victim’s residence, vehicle and place of employment.”

Although
the probation conditions as reflected in the minute order signed by the court
are not verbatim to the probation conditions as orally stated by the court, the
substance of the conditions are generally the same and any small differences
are not material to the issues on appeal.
We will therefore rely on the minute order signed by the court as
reflecting the probation conditions imposed on defendant. (See People
v. Thrash (1978) 80 Cal.App.3d 898, 901-902.)

Before
turning to the substance of defendant’s constitutional claims, we first
consider whether the claims have been forfeited by his failure to raise them
below. Our Supreme Court has determined
that the forfeiture rule does not apply when a probation condition is
challenged as unconstitutionally vague or overbroad on its face and the claim
can be resolved on appeal as a pure question of law without reference to the
sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 887-889 (>Sheena K.); see also >People v. Leon (2010) 181 Cal.App.4th
943, 949 (Leon).) In this case, we will consider the substance
of defendant’s claims to the extent they present pure questions of law without
reference to the sentencing record.

>1.
Condition No. 7

Condition
No. 7 states: “Totally abstain from the
use of alcoholic beverages, not purchase or possess alcoholic beverages, and
stay out of places when it is the main item of sale.”

Defendant
contends that this probation condition is vague and overbroad because it does
not include an explicit knowledge requirement regarding possession of the
prohibited item. Defendant further
contends that the probation condition is “defective” because he may be found in
violation “by entering a place where he did not know that alcohol was the main
item of sale at that place.” Defendant
proposes that “knowingly” and “know” be added to the probation condition.

The
Attorney General “does not object” to modifying any of the probation conditions
at issue to include a “knowledge requirement.”
Further, with respect to the requirement that defendant stay out of
places where alcohol is the main item of sale, the Attorney General suggests
that the probation condition “could” include the phrase that defendant “knows
or reasonably should know” the sale or consumption of alcohol is the primary
business.

In
reply, defendant objects to the “reasonably should know” language on the ground
that it would render the probation condition unconstitutionally vague.

“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.” (Sheena
K., supra, 40 Cal.4th at p. 890; >Leon,
supra, 181 Cal.App.4th at pp. 948-949.)
In addition, “[a] probation condition ‘must be sufficiently precise for
the probationer to know what is required of him [or her], and for the court to determine
whether the condition has been violated,’ if it is to withstand a
[constitutional] challenge on the ground of vagueness.” (Sheena
K., supra, at p. 890; >Leon, supra, at p. 949; People
v. Freitas (2009) 179 Cal.App.4th 747, 750 (Freitas).) “[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., supra, at p. 890.) In
order to be sufficiently precise for the probationer to know what is required
of him or her, a requirement of knowledge should be included in probation
conditions prohibiting the possession of specified items. (Freitas,
supra, at pp. 751-752.) “[T]he law has no legitimate interest in
punishing an innocent citizen who has no knowledge of the presence of [the
prohibited items].” (>Id. at p. 752.)

In
this case, we shall modify the probation condition by including an explicit
knowledge requirement. (>Freitas, supra, 179 Cal.App.4th at pp. 751-752.) We do not decide the issue of whether the
“reasonably should know” language, as proposed by the Attorney General, is also
necessary or proper. As noted, the
Attorney General does not object to the inclusion of the language proposed by
defendant and only suggests, without any substantive analysis, that the
probation condition “could” also include the “reasonably should know” language.

Accordingly,
we shall modify condition No. 7 to state:
“Totally abstain from the knowing use of alcoholic beverages, not
knowingly purchase or possess alcoholic beverages, and stay out of places when
you know it is the main item of sale.”

>2.
Condition No. 8

Condition
No. 8 states: “Not use or possess
alcohol/narcotics, intoxicants, drugs, or other controlled substances without
the prescription of a physician; not traffic in, or associate with [persons]
known to defendant to use or traffic in narcotics or other controlled
substances.”

Defendant
contends that this probation condition is vague and overbroad because it does
not include an explicit knowledge requirement regarding possession of the
prohibited items and regarding the nature of the illegal drugs. Defendant further contends that the probation
condition is overbroad with respect to the term “drugs” because the probation
condition prohibits him from using or possessing items such as Tylenol or
aspirin. Defendant proposes that
“knowingly” and “know” be added to the probation condition, and that the
reference to drugs be limited to “illegal” drugs.

The
Attorney General does not object to defendant’s proposed modifications.

We
shall modify condition No. 8 by including an explicit knowledge requirement, by
inserting “illegal” before the term “drugs,” and by removing the redundant
reference to alcohol possession and use which are already covered by condition
No. 7, so that condition No. 8 states:
“Not knowingly use or possess narcotics, intoxicants, illegal> drugs, or other controlled substances
without the prescription of a physician; not traffic in, or associate with
persons known to defendant to use or traffic in narcotics or other controlled
substances.”

>3.
Condition No. 12

Condition
No. 12 states: “Stay away at least 100
yards from victim, victim’s residence, vehicle and place of employment.”

Defendant
acknowledges that he knows the victims, who are his son and his son’s wife, and
that he knows where they live. He
contends that the probation condition is nevertheless vague and overbroad
because it lacks an explicit knowledge requirement regarding the location of the
victims’ vehicles or places of employment.
Defendant argues that he “could be found in violation for parking his
car near the victims’ car in a public place such as a shopping center without
having knowledge that the car belonged to the victims.” Defendant proposes that the probation condition
be modified to state that he is prohibited from “knowingly” coming within
100 yards of the victims or the specified places.

The
Attorney General does not object to including an explicit knowledge
requirement. The Attorney General
suggests that the probation condition “could” include the phrase “known or
reasonabl[y] should be known” to defendant.

In
reply, defendant objects to the “reasonably should be known” language on the
ground that it would render the probation condition unconstitutionally vague.

We
shall modify the probation condition by including an explicit knowledge
requirement because defendant could unknowingly violate the condition as
currently written. Defendant could not
be expected to know all the locations to which the victims will travel. We determine that the probation condition
must include an express knowledge requirement to give defendant fair warning of
what locations he must avoid. (See >Sheena K., supra, 40 Cal.4th at p. 890.)

We
do not decide the issue of whether the “reasonably should know” language, as
proposed by the Attorney General, is also necessary or proper. As noted, the Attorney General does not
object to the inclusion of the language proposed by defendant and only suggests,
without any substantive analysis, that the probation condition “could” also
include the “reasonabl[y] should be known” language.

Accordingly,
we shall modify condition No. 12 to state:
“Do not knowingly come within 100 yards of the victims, their residence,
vehicles, and places of employment.”

>B. >Conduct Credit

At
the sentencing hearing on September 30, 2011, the trial court granted defendant
301 days of presentence custody credits, consisting of 201 actual days plus 100
days conduct credit. On appeal,
defendant contends that his conduct credit should be calculated pursuant to the
current version of section 4019, which was operative after he was sentenced in
September 2011, and that, under the current version, he is entitled to 200 days
conduct credit instead of the 100 days awarded by the court.

The
current version of section 4019 generally provides that a defendant may earn
conduct credit at a rate of two days for every two-day period of actual
custody. (§ 4019, subds. (b), (c)
& (f).) However, the current version
of section 4019 states that the conduct credit rate “shall apply prospectively
and shall apply to prisoners who are confined to a county jail [or other local
facility] for a crime committed on or after October 1, 2011. Any days earned by a prisoner prior to
October 1, 2011, shall be calculated at the rate required by the prior
law.” (§ 4019, subd. (h).) In this case, defendant committed his crime
and was sentenced prior to
October 1, 2011. Thus the October
2011 version of section 4019, which provides for prospective application, does
not apply to defendant. (§ 4019,
subd. (h); People v. Brown
(2012) 54 Cal.4th 314, 322, fn. 11 (Brown);
People v. Lara (2012) 54 Cal.4th 896,
906, fn. 9 (Lara);> People v. Ellis (2012) 207 Cal.App.4th
1546, 1550 (Ellis).)

Defendant
contends that the equal protection clauses of the state and federal
Constitutions require that the October 2011 version of section 4019 be
retroactively applied to him.

“The
concept of equal protection recognizes that persons who are similarly situated
with respect to a law’s legitimate purposes must be treated equally. [Citation.]
Accordingly, ‘ “[t]he first prerequisite to a meritorious claim under
the equal protection clause is a showing that the state has adopted a
classification that affects two or more similarly
situated groups in an unequal manner.” ’
[Citation.] ‘This initial inquiry
is not whether persons are similarly situated for all purposes, but “whether
they are similarly situated for purposes of the law challenged.” ’ [Citation.]”
(Brown, supra, 54 Cal.4th at p. 328.)

We
find Brown instructive on the equal
protection issue raised by defendant in this case. In Brown,
the California Supreme Court held that a former version of section 4019,
effective January 25, 2010, applied prospectively, and that the equal
protection clauses of the federal and state Constitutions did not require
retroactive application. (>Brown, supra, 54 Cal.4th at p. 318.)
In addressing the equal protection issue, the court determined that
“prisoners who served time before and after [the January 2010 version of]
section 4019 took effect are not similarly situated . . . .” (Brown,
supra, at p. 329.) On this point, the California Supreme Court
found In re Strick (1983) 148
Cal.App.3d 906, “persuasive” and quoted from that decision as follows: “ ‘The obvious purpose of the new section,’
. . . ‘is to affect the behavior of inmates by providing them with
incentives to engage in productive work and maintain good conduct while they
are in prison.’ [Citation.] ‘[T]his incentive purpose has no meaning if
an inmate is unaware of it. The very
concept demands prospective application.’
[Citation.] ‘Thus, inmates were
only similarly situated with respect to the purpose of [the new law] on [its
effective date], when they were all aware that it was in effect and could
choose to modify their behavior accordingly.’
[Citation.]” (>Brown, supra, at p. 329.) The
California Supreme Court also disagreed with the defendant’s contention that
its decision in People v. Sage (1980)
26 Cal.3d 498 “implicitly rejected the conclusion” that the Court of Appeal
reached in Strick, namely “that
prisoners serving time before and after a conduct credit statute takes effect
are not similarly situated.” (>Brown, supra, at p. 329.)

Defendant
argues that his case is analogous to In
re Kapperman (1974) 11 Cal.3d 542 (Kapperman),
where the California Supreme Court concluded that equal protection required the
retroactive application of a statute granting credit for time served in local
custody before sentencing and commitment to state prison. In Brown,
however, the California Supreme Court explained that “Kapperman does not hold or suggest that prisoners serving time
before and after the effective date of a statute authorizing >conduct credits are similarly
situated.” (Brown, supra, 54
Cal.4th at p. 330.)

Further,
we observe that in a footnote in Lara,
the California Supreme Court rejected the contention, similar to the one made
by defendant in this case, that the prospective application of the October 2011
version of section 4019 denied the defendant equal protection. (Lara,
supra, 54 Cal.4th at p. 906, fn.
9.) Citing Brown, the California Supreme Court in Lara explained that prisoners who serve their pretrial detention
before the effective date of a law increasing conduct credits, and those who
serve their detention thereafter, “are not similarly situated with respect to
the law’s purpose.” (>Lara, supra, at p. 906, fn. 9; but see People v. Verba (2012) 210 Cal.App.4th 991, 995-996, petn. for
review pending, petn. filed Dec. 7, 2012, S207193.)

Defendant
also argues for the first time in his reply
brief that a pretrial detainee who is unable to afford bail may actually
serve more time in custody than a wealthier counterpart who is able to make
bail before being sentenced to an identical prison term. Defendant argues that this disparate
treatment results from the fact that the defendant who makes bail is
subsequently able to earn postsentence credits on a one-for-one basis (§ 2933),
whereas some defendants who do not make bail will earn presentence conduct
credit at a less favorable rate.
Defendant contends that equal protection therefore requires the current
version of section 4019, which provides for conduct credit at a rate of two
days for every two-day period of actual custody, be retroactively applied to
him.

Defendant’s
contention is forfeited by his failure to raise it earlier. (See People
v. Peevy (1998) 17 Cal.4th 1184, 1206; People
v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26.) Further, the contention is without
merit. “[T]he pre- and postsentence
credit systems serve disparate goals and target persons who are not similarly
situated.” (People v. Buckhalter (2001) 26 Cal.4th 20, 36.) Defendant thus fails to demonstrate an equal
protection violation. (See >People v. Heard (1993) 18 Cal.App.4th
1025 [differences in conduct credit formulas for pretrial detainees under
former section 4019 and state prison inmates under section 2931 did not violate
equal protection].)

Accordingly,
following Brown and >Lara, we determine that defendant is not
entitled to additional conduct credit under the October 2011 version of section
4019. (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455; see Ellis,
supra, 207 Cal.App.4th at
p. 1548 [“prospective-only application” of the October 2011 version of
section 4019 does not violate equal protection].)

>IV. DISPOSITION

The
judgment (order of probation) is ordered modified as follows.

Probation
condition No. 7 is modified to state:
“Totally abstain from the knowing use of alcoholic beverages, not
knowingly purchase or possess alcoholic beverages, and stay out of places when
you know it is the main item of sale.”

Probation
condition No. 8 is modified to state:
“Not knowingly use or possess narcotics, intoxicants, illegal drugs, or
other controlled substances without the prescription of a physician; not
traffic in, or associate with persons known to defendant to use or traffic in
narcotics or other controlled substances.”

Probation
condition No. 12 is modified to state:
“Do not knowingly come within 100 yards of the victims, their residence,
vehicles, and places of employment.”

As
so modified, the judgment is affirmed.





___________________________________________

Bamattre-Manoukian, J.











WE CONCUR:









__________________________

ELIA, ACTING P.J.















__________________________

Márquez, J.