P. v. Shenouda

Filed 1/29/09 P. v. Shenouda CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Carla M. Singer, Judge. Affirmed as modified.

Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.

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THE COURT:*

A jury found Marmena Nageb Shenouda guilty of assault with a deadly weapon and misdemeanor spousal battery after he stabbed Elizabeth Elean Torres in the hand with a pair of scissors. The trial court suspended imposition of sentence, placed Shenouda on three years probation, and ordered him to serve 365 days in jail.

The only issue on appeal involves two conditions of probation and a provision within the domestic violence protective order. As conditions of probation, the trial court ordered Shenouda not to associate with any person disapproved of by the probation officer, and not to have any contact with Elizabeth Elean Torres directly, indirectly, or through a third party except by an Attorney of Record. The court further stated at the hearing and youre not to come within 100 yards of her. This condition does not appear in the minute order listing the conditions of probation but appears to be included within the domestic violence protective order. Shenouda argues these conditions are unconstitutionally vague and should be stricken or modified to add a scienter element. The Attorney General concurs, and suggests the conditions be modified.

Our Supreme Court has held that a probation condition that a defendant not associate with anyone disapproved of by the probation officer is unconstitutionally vague in the absence of an express requirement of knowledge. (In re Sheena K. (2007) 40 Cal.4th 875, 891.) The reason is that the probation condition must give a probationer fair notice as to what is permitted, and for the court to determine whether the condition has been violated. (Id. at p. 890.) The same constitutional analysis applies to the no-contact orders with the victim. As Shenouda points out, the no-contact and 100 yards limitation conditions are vague because [a]ppellant could innocently be shopping at the mall at the same time Ms. Torres was present. Ms. Torres could see appellant, appellant not see Torres, and have Torres notify law enforcement. Because these conditions do not contain an express requirement of knowledge they are unconstitutionally vague.

Rather than striking the conditions, the Supreme Court has approved the process whereby the appellate courts modify the conditions to add the knowledge element. (In re Sheena K., supra, 40 Cal.4th at p. 892.) Thus, we modify the first probation condition to state: Do not associate with any persons who you know are disapproved of by the probation officer. We modify the second condition to state: Do not knowingly have any contact with Elizabeth Elean Torres directly, indirectly, or through a third party except by an Attorney of Record. We modify the domestic violence protective order to state that appellant is not knowingly to come within 100 yards of Elizabeth Torres.

As so modified, the judgment of conviction is affirmed.

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* Before Sills, P. J., Moore, J., and Fybel, J.