P.v. Ramos
Filed 1/8/13 P.v. Ramos CA4/2
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOURTH
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
VERONICA CRYSTAL RAMOS,
Defendant
and Appellant.
E056760
(Super.Ct.No.
FVI1201373)
OPINION
APPEAL from the Superior
Court
of
San Bernardino
County. Lorenzo R.
Balderrama, Judge. Affirmed.
Lewis A. Wenzell, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General,
Melissa Mandel and Marissa Bejarano, Deputy Attorneys General, for Plaintiff
and Respondent.
Defendant Veronica Crystal Ramos appeals from an order
granting probation (Pen. Code, § 1237)
of petty theft with three priors (§ 666) and admission of a prior prison term
enhancement (§ 667.5). We find the
challenged condition of probation to be unexceptionable and affirm the
judgment.
title="">[2]
STATEMENT
OF FACTS
At the time defendant entered her plea, the parties
stipulated that the police report could be used to establish a factual basis
for the plea, and we will therefore briefly summarize the information from that
document.
Defendant was in a Kohl’s department store in Victorville
when store personnel, via closed circuit television, observed her select two
pairs of earrings
name="_ftnref3" title="">[3] and remove them from the display cards to
which they were attached. She eventually
left the store without paying for the earrings.
When stopped by store security, she did not have the earrings but said
she had dropped them in an aisle.
Defendant later told police that she had decided to steal the earrings
after entering the store but had changed her mind.
After accepting defendant’s change of plea, the trial
court suspended imposition of sentence and placed her on three years’
probation. One of the terms of probation
was that defendant “STAY AWAY FROM KOHLS AT 14305 BEAR VALLEY RD IN VICTORVILLE
CA.†Defendant argues that this was an
improper condition of probation because it is “unconstitutionally vague and
overbroad.†She asks us to modify the
condition to read “do not enter.â€
Applying well-settled rules of statutory construction, we find this
action unnecessary and, therefore, we affirm the judgment.
DISCUSSION
Because violation
of the probation condition carries the potential for revocation and even
incarceration, we think it is appropriate to construe it in the same manner as
a criminal statute. That is, we look for
a construction that is constitutional and is consistent with the apparent
purpose of the condition. (See
Clare v. State Bd. of Accountancy (1992)
10 Cal.App.4th 294; cf. Kopp v. Fair Pol.
Practices Com. (1995) 11 Cal.4th 607, 670-671 [confirming power of courts
to reform statutes to preserve constitutionality, but declining to do so
because the proposed reformation would be counter to the intent of the
electorate that enacted the statute].)
A challenge based on alleged “vagueness†essentially
argues that the challenged requirement does not give fair warning of the
prohibited conduct, and this applies to probation conditions. (In re
Sheena K., supra, 40 Cal.4th at
p. 890.)
Defendant asserts that “stay away from†is impermissibly
vague as it provides no specific distance limitation by which she can guide her
conduct. She also points out that a
broad construction of the term would arguably prevent her from visiting other
retail establishments, restaurants, or amusements located in the vicinity of
Kohl’s.
title="">[4]
In response, the People argue that “stay away from†may
be, and should be, interpreted as only forbidding defendant from entering the
Kohl’s store premises, and we agree.
Such a construction amply serves the obvious intent of the probation
condition—to prevent recidivism—and it can hardly be argued that this is not a
valid basis for a probation condition.
(See People v. Lent (1975) 15
Cal.3d 481, 486.) As there is no risk of
repeated crime unless defendant enters the Kohl’s, the term “stay away fromâ€
simply prohibits defendant from going into the store. Even if the address is common to the entire
shopping center, the specification of the Kohl’s store clarifies that it is the
focus of the “stay away from†order and constitutes the only prohibited
premises.
title="">[5]
We therefore agree with defendant that the trial court
could reasonably only have intended to prohibit her from entering the Kohl’s
and not from stopping by the shopping center “to get a hamburger and
fries.†But, we agree with the People
that the order in fact can only reasonably be construed to have that limited
effect. Accordingly, no modification is
required and the judgment (order for probation) is affirmed.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting
P.J.
We concur:
KING
J.
CODRINGTON
J.
name="_ftn1" title=""> [1]
All further statutory references are to the Penal Code unless otherwise
indicated.
name="_ftn2" title=""> [2]
The People agree that defendant’s failure to object at the time the
order was made does not bar her from challenging the condition now. (In re
Sheena K. (2007) 40 Cal.4th 875, 885.)
However, we must stress yet again that these proceedings would have been
unnecessary (and the public expense spared) if either attorney below had been
diligent in screening the probation conditions for potential ambiguities, which
could have been readily eliminated by the trial court rather than being left as
fodder for appeal.
