P. v. Johnson
Filed 4/26/13 P. v. Johnson 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opinion has not been certified for publication or ordered published for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.
THEODORE JOHNSON,
Defendant and
Appellant.
H037643
(Monterey
County
Super. Ct.
No. SS092170A)
Defendant
Theodore Johnson appeals after conviction of
manner (Pen. Code, § 246.3, subd. (a)),
threatening an executive officer (§
69), and unlawful firearm activity (former § 12021, subd. (c)(1)). He was placed on probation for three years.
On appeal,
defendant contends: (1) the trial court
erred by terminating his self-representation on the day that his trial was
scheduled to begin; (2) the trial court erred by denying his motion to quash
the search warrant; (3) there was insufficient evidence to support his
conviction of discharging a firearm in a grossly negligent manner; (4) the
trial court erred by imposing a condition of probation that precludes him from
associating with people that he knows or “reasonably should know†to be on
probation or parole; and (5) he is entitled to additional custody credits under
the October 1, 2011 version of section 4019.
For reasons
that we will explain, we will affirm the judgment.
Background
A. The August 26, 2009 Incident
On August 26, 2009, defendant’s daughter
Chantea Johnson
title="">[2]
and her boyfriend Marque Bullock were living at defendant’s home on Larkin
Street in Salinas. Chantea and Bullock stayed in a room that was
detached from the main house.
Between 11 a.m. and noon,
Bullock went into the main house. He
walked through the garage, where defendant was smoking with a friend. Bullock said, “What’s up,†to defendant but
did not really “acknowledge him.â€
Defendant apparently felt disrespected.
Defendant
came out to the detached room, carrying a gun.
He was cursing at Bullock and “really mad.†He told Chantea and Bullock that they had to
leave that day. While speaking, he was
swinging the gun back and forth, pointing it at Chantea and Bullock. He then fired it into the ceiling. The bullet left a hole in the ceiling.
Chantea and
Bullock packed up some belongings and left.
Chantea later called 911, reporting that defendant had “pulled a gun on
[her] and [her] boyfriend†and that he had “shot it off.â€
Salinas
Police Sergeant Sheldon Bryan was dispatched to defendant’s house. When he arrived at about 12:45 p.m., he first made contact with a woman in the
house. He asked her to have defendant
step outside, but defendant did not. The
officers then entered the house and found defendant lying on a bed in his
bedroom. Only one of defendant’s hands
was visible, so Sergeant Bryan ordered him to show his other hand. Defendant did not comply until Sergeant Bryan
threatened to use his Taser.
After
defendant was handcuffed, he was “extremely agitated†and hostile. Sergeant Bryan placed defendant in a patrol
car and attempted to read him the Miranda
advisements,
title="">[3]
but defendant “continuously interrupted.â€
He also threatened Sergeant Bryan, saying, “I’m going to get you, I’m
going to get you and your family.â€
Sergeant
Bryan took defendant to the police station, then got a search warrant for the
residence. He returned to the house,
which had been “frozen,†with officers stationed to prevent anyone from
entering it. He found a .357-caliber
pistol in defendant’s bedroom and a rifle inside the garage. The pistol was fully loaded. One bullet had been expended.
Inside the
detached room, Sergeant Bryan saw drywall dust on the ground directly beneath
the bullet hole. Another officer who had
been in charge of photographing evidence did not observe any drywall dust. Sergeant Bryan did not make any effort to
retrieve the bullet for comparison with the gun, because the damage caused to
the home would have outweighed any evidentiary value of the bullet.
B. Charges, Trials, and
Sentencing
Defendant
was charged by amended information with assault with a firearm (counts 1 and 2;
§ 245, subd. (a)(2)), discharging a firearm in a grossly negligent manner
(count 3; § 246.3, subd. (a)), resisting an executive officer (count 4; § 69),
and unlawful firearm activity (count 5; former § 12021, subd. (c)(1)).
At a first
jury trial, the jury failed to reach a verdict on counts 1 through 3 (the two
assaults and discharging a firearm in a grossly negligent manner), but it found
defendant guilty of counts 4 and 5 (resisting an executive officer and unlawful
firearm activity).
title="">[5] At a second jury trial, the jury failed to
reach a verdict on counts 1 and 2 (the two assaults), but it found defendant
guilty of count 3 (discharging a firearm in a grossly negligent manner).
At the
2011, the trial court dismissed counts 1 and 2.
It suspended imposition of sentence and placed defendant on probation
for three years. As a condition of
probation, defendant was ordered to serve 200 days in county jail.
Discussion
A. Termination of
Self-Representation
Defendant
contends the trial court erred by terminating his right to self-representation
on the day set for trial.
1. Proceedings Below
At the
March 18, 2010 pretrial conference, defendant moved to represent himself. (See Faretta
v. California (1975) 422 U.S. 806 (Faretta).) The trial court granted defendant’s motion,
and defendant represented himself at the next few hearings.
On November
8, 2010, the day set for jury trial, defendant continued to represent
himself. However, he rambled on about
extraneous issues and talked over the judge and prosecutor. The trial court warned defendant that at
trial, he would not be able to “stand up and make speeches†whenever he wanted
to.
After a
recess, the trial court commented, “Mr. Johnson, I understand you’ve been doing
a little drinking this morning.â€
Defendant responded, “Yes, sir, I have.â€
Defendant denied drinking every morning, stating he had done so that
morning because he was “stressing.†At
that point, defendant also informed the trial court that he had a
“condition.†He also told the trial
court that he was disabled and that he took “plenty†of medications on a daily
basis, including sleeping pills, Trazodone, Hydrocodone, and Oxycodone.
The trial
court found it was not “appropriate†for defendant to continue representing
himself. Defendant agreed, commenting,
“Yeah, I know – I know what you’re saying . . . .†The trial court told him, “[Y]ou’re
intoxicated. I can’t proceed with the
trial.†Defendant noted there was “no
jury here†anyway, but the trial court informed him that a jury could be
brought in. Defendant then indicated he
was “satisfied†with the trial court’s decision.
The trial
court specified, “Given your medical situation, combined with your use of
alcohol, the Court doesn’t feel you’re competent to represent yourself.†The trial court noted, “[T]his could recur at
any time.â€
After the
trial court reappointed the Public Defender, it reiterated its finding that
defendant was not competent to represent himself, noting, “certainly, today
you’re not.†Defendant asked, “Well, how
about in [the] future?†The trial court
told defendant, “No.†The trial court
explained, “[I]f you decide you’re stressed on the morning of trial, you’re
going to drink alcohol or take some medication or do something else . . .
.†Defendant later told the trial court
he had intended to come to court sober, “but being stressed out is not a good
idea.â€
2. Faretta Standards
Under the
Sixth Amendment of the United States Constitution, a criminal defendant has the
right to self-representation at trial. (Faretta,
supra, 422 U.S. at p. 819; People v. Marshall (1997) 15 Cal.4th 1,
20.) Generally, “[a] trial court must
grant a defendant’s request for self-representation if three conditions are
met. First, the defendant must be
mentally competent, and must make his [or her] request knowingly and
intelligently, having been apprised of the dangers of self-representation. [Citations.]
Second, he [or she] must make his [or her] request unequivocally. [Citations.]
Third, he [or she] must make his [or her] request within a reasonable
time before trial. [Citations.]†(People v. Welch (1999) 20 Cal.4th
701, 729 (Welch).)
Although a
defendant may initially be granted the right to self-representation, that right
may be terminated by the trial court if the defendant “engages in serious and
obstructionist misconduct.†(Faretta,
supra, 422 U.S. at p. 834, fn. 46.) Faretta
stated: “The right of
self-representation is not a license to abuse the dignity of the
courtroom. Neither is it a license not
to comply with relevant rules of procedural and substantive law.†(Ibid.) A defendant is entitled to
self-representation only if he or she “is able and willing to abide by rules of
procedure and courtroom protocol.†(McKaskle
v. Wiggins (1984) 465 U.S. 168, 173.)
In determining whether to terminate a defendant’s self-representation,
“a trial court must undertake the task of deciding whether a defendant is and
will remain so disruptive, obstreperous, disobedient, disrespectful or
obstructionist in his or her actions or words as to preclude the exercise of
the right to self-representation. The
trial court possesses much discretion when it comes to terminating a
defendant’s right to self-representation and the exercise of that discretion
‘will not be disturbed in the absence of a strong showing of clear abuse.’
[Citations.]†(Welch, supra, 20
Cal.4th at p. 735.)
3. Acquiescence
The
Attorney General argues that defendant acquiesced in the trial court’s ruling
and that he is therefore barred from raising this claim on appeal. The Attorney General cites
(Rudd), where the court noted that
“the Sixth Amendment self-representation right does not exist when a defendant
prior to or during trial acquiesces in the assignment or participation of
counsel in the defense. [Citation.]†(
the trial court revoked the defendant’s pro per status due to his
unpreparedness on the day of trial. The
appellate court found that by saying nothing, the defendant had acquiesced in
the trial court’s ruling, observing that “under certain circumstances waiver or
forfeiture of the self-representation right can occur simply when no objection
is interposed. [Citation.]†(Ibid.)
In this
case, defendant did not say nothing, as in Rudd. Initially, he appeared to acquiesce in the
trial court’s ruling, by commenting, “Yeah, I know – I know what you’re sayingâ€
and indicating he was “satisfied†with the trial court’s decision. However, defendant later asked whether he
would be permitted to represent himself “in [the] future.†Under the circumstances, we decline to find
that defendant acquiesced in the trial court’s decision to revoke his pro per
status for the rest of the trial.
4. Analysis
Defendant
contends that one instance of being intoxicated in court was not grounds for
terminating his right of self-representation.
He argues that the trial court was only entitled to terminate his right
of self-representation if it found defendant had engaged in a pattern of
disruptiveness or misconduct.
Defendant
notes that “a number of instances†of disruptive conduct led the court to deny
a Faretta motion in
735. He notes the same was true in
159 F.3d 1077 (Brock). But neither case states that a trial court
may not terminate a defendant’s right to self-representation based on one
instance of disruptive conduct.
In
engaged in disruptive behavior on a number of occasions. The court commented, “[W]hile no single one
of the above incidents may have been sufficient by itself to warrant a denial
of the right of self-representation, taken together they amount to a reasonable
basis for the trial court’s conclusion that defendant could not or would not
conform his conduct to the rules of procedure and courtroom protocol, and that
his self-representation would be unacceptably disruptive.†(Welch,
supra, 20 Cal.4th at p. 735.) In Brock,
supra, 159 F.3d at page 1078, the trial court terminated the defendant’s
right of self-representation because the defendant had engaged in “obstreperous
conduct†on several occasions, even after being cited for contempt. The Brock
court upheld the trial court’s ruling, explaining that a defendant may lose the
right of self-representation at any time, if the trial court finds that his or
her “obstreperous behavior is so
disruptive that the trial cannot move forward.â€
(Id. at p. 1079.) The Brock
court further explained that a trial court is entitled to terminate a
defendant’s self-representation if, based on the defendant’s past behavior,
there is “a strong indication†that the defendant will continue to be
disruptive. (Id. at p. 1080.)
Here, defendant was so intoxicated
on the day of trial that he was disruptive, talking over the judge and rambling
on about irrelevant matters. His
intoxication and behavior precluded the trial court from calling in the jury to
start trial. Defendant also informed the
trial court that he typically drinks alcohol when he is stressed out. Based on this information, the trial court
could reasonably decide that the stress of a trial would likely cause defendant
to become intoxicated again, and thus that he would “remain so
disruptive, obstreperous, disobedient, disrespectful or obstructionist in his
or her actions or words as to preclude the exercise of the right to
self-representation.†(Welch, supra,
20 Cal.4th at p. 735.) The record provides a basis for the trial
court to find “a strong indication†that defendant would continue to be
disruptive if permitted to continue representing himself. (Brock,
supra, 159 F.3d at p. 1080.) Under the circumstances, the trial court was
well within its discretion in terminating defendant’s right of
self-representation.
B. Motion to Quash Search Warrant
Defendant
contends the trial court erred by failing to quash the search warrant, which
was issued without a magistrate’s signature, and by failing to suppress the
evidence obtained pursuant to the warrant.
Respondent contends the magistrate’s failure to sign the warrant was a
technical defect, and that the search was conducted in good faith.
1. Proceedings Below
At the
March 18, 2010 pretrial conference where defendant first began representing
himself, he moved to quash the search
warrant. (See § 1538.5.) He argued that the warrant was invalid
because the magistrate failed to sign the warrant. The People filed a response to defendant’s
motion to quash, and the trial court held a hearing on June 17, 2010.
At the
hearing on the motion, Judge Mark Hood testified. He had been the magistrate at the time
Sergeant Bryan applied for the warrant.
He remembered the warrant because it was for a home on Larkin Street,
and Judge Hood had once lived near Larkin Street in San Francisco. Judge Hood also recognized his own
handwriting on the warrant and saw his initials in the lower left-hand corner
of each page. His practice was to
initial every page to ensure he had read each one.
Judge Hood
recalled that he had verbally “informed the deputy that [he] did find in fact
there was probable cause to issue the warrant.â€
He had reviewed the application, sworn the deputy in, then handed the
warrant back to the deputy so he could sign the affidavit. Pursuant to his regular practice, Judge Hood
had next looked for his initials and the deputy’s signature, then filled out
the date and time. At that point, he may
have gotten distracted by a question or phone call, because he intended to sign
the warrant but failed to do so. If he
had not intended to sign it, he would not have dated it or sworn the deputy in.
Deputy
Bryan also testified at the hearing on the motion to quash. He had prepared the search warrant and
affidavit and brought it to Judge Hood.
He had been sworn in and questioned by the judge, then signed the
affidavit in the judge’s presence. He
left with what he thought was a signed search warrant.
After the
search, Deputy Bryan returned to the police department to process
evidence. While filling out the search
warrant return, he noticed that Judge Hood had not signed the warrant. He called the judge’s chambers and the court
clerk to notify them of the omission, and he noted it in his report.
After
hearing the testimony of Judge Hood and Deputy Bryan, the trial court denied
the motion to quash. The trial court
found that “it was an oversight by the judge.â€
The trial court further found that even if the warrant was invalid, the
search had been conducted in good faith.
It therefore declined to suppress the evidence obtained during the
search.
2. Standard of Review
In
determining whether the trial court properly denied a motion to quash a search
warrant and suppress evidence, we apply a well-established standard of
review: “We defer to the trial court’s
express and implied factual findings if supported by substantial evidence, but
we independently determine the legality of the search under the Fourth
Amendment. [Citation.]†(People v. Eubanks (2011) 53 Cal.4th
110, 133.)
3. Analysis
The Fourth
Amendment to the Constitution of the United
States provides: “The right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to
be seized.â€
Although
the Fourth Amendment does not specifically require that a warrant be signed by
a magistrate (People v. Superior Court
(Robinson) (1977) 75 Cal.App.3d 76, 80), defendant points out that a number
of California statutes do set forth such a requirement. Section 1523 defines a search warrant as “an
order in writing, in the name of the people, signed by a magistrate . . .
.†Section 1528, subdivision (a)
provides that a magistrate must issue a warrant “signed by him or her with his
or her name of office,†upon finding probable cause to issue the warrant. Under section 1526,
subdivision (b)(2)(C)(i), when an officer presents a search warrant
affidavit by electronic method, the magistrate is required to “[s]ign the
warrant.†These same statutes, however,
provide that a magistrate’s personally written signature is not required in
every case. Under section 1528, subdivision
(b), the magistrate may “orally authorize a peace officer to sign the
magistrate’s name on a duplicate original warrant.†Section 1526, subdivision (b)(2)(C)(i)
permits the magistrate’s signature to “be in the form of a digital signature or
electronic signature.â€
Generally,
the procedures outlined in these statutory enactments are “ministerial in nature.†(People v. Guillebeau (1980) 107 Cal.App.3d 531, 555.) While “[c]ompliance with the requisites of
the statute must be adhered to in order to insure adequate judicial supervision
and control to preserve the constitutional guarantees [citation],†a search is
not invalidated by “[t]echnical defects in the procedure.†(People
v. Sanchez (1982) 131 Cal.App.3d 323, 329.)
Based on this principle, cases from this state and other
jurisdictions have found that a magistrate’s inadvertent failure to sign a
search warrant, after finding probable cause for its issuance, does not
invalidate a subsequent search conducted pursuant to the warrant.
In
Cal.App.3d 281 (Sternberg), the facts
were nearly identical to those in this case.
The officer prepared a search warrant affidavit, swore to its content,
and signed it in the presence of the magistrate. The magistrate read and signed the affidavit,
and he orally authorized the issuance of a search warrant, but he failed to
sign the warrant itself. The
magistrate’s failure to sign the warrant was due to his “shock and surprise†at
noticing that a barber shop he frequented was one of the premises mentioned in
the affidavit. (Id. at p. 284.) As in this
case, the officers “took the search warrant, fully believing it had been
signed,†and executed it, but later discovered the missing signature. (Id.
at p. 285.)
The
conducted pursuant to the unsigned warrant was in “compliance with the
constitutional requirements,†since the magistrate had reviewed the affidavit
and found probable cause for issuance of the search warrant. (Sternberg,
supra, 41 Cal.App.3d at p. 289.) The
court further noted that if the residents had challenged the warrant at the
time it was being executed, the police could have quickly remedied the
deficiency by securing the magistrate’s signature at that time, or by securing
“authorization to insert his name under the duplicate original warrant
procedure authorized by subdivision (b) of section 1528.†(Id.
at p. 290.)
California
cases have followed Sternberg, and
cases from other jurisdictions are in accord.
(See, e.g., People v. Superior
Court (Robinson), supra, 75 Cal.App.3d at p. 79; State v. Huguenin (1995) 662 A.2d 708, 711 [“A warrant, that is
supported by probable cause and otherwise valid is not void merely because of
an inadvertent failure to sign it.â€]; Commonwealth
v. Pellegrini (1989) 539 N.E.2d 514, 517.)
The
even if the warrant was “insufficient on its face,†the defendant’s motion
would still have been properly denied, since the officers “acted in good faith
without actual knowledge of the defect.â€
(Sternberg, supra, 41
Cal.App.3d at p. 292.) The court held
that under the circumstances, “the purposes of the exclusionary rule will not
be served by its application to the technically defective search which was
effected in this case.†(
Defendant
acknowledges that the trial court’s ruling in this case is consistent with
exclusionary rule does not apply when the warrant is “so facially deficientâ€
that “the executing officers cannot reasonably presume it to be valid.†(Id.
at p. 923.)
Although
Supreme Court’s decision in Leon, its
conclusion is consistent with the results reached in post-Leon cases. For instance, in
United States v. Kelley (5th Cir.
1998) 140 F.3d 596, the court upheld the denial of a motion to suppress based
on the magistrate’s failure to sign the warrant: “Because the objective criteria for the
search warrant—probable cause—existed and the warrant was flawed only due to
the inadvertence of the magistrate, we hold that the good-faith exception to
the exclusionary rule applies.†(
In this
case, the magistrate found probable cause to issue the
Deputy Bryan. The record supports the
trial court’s finding that the magistrate’s failure to sign the warrant was due
to inadvertence and that Deputy Bryan conducted a search in good faith reliance
on the warrant, without knowledge or reckless disregard for the fact that it
lacked the magistrate’s signature. Under
the circumstances and based on the case law discussed above, the trial court
properly denied defendant’s motion to quash.
C. Sufficiency of the Evidence
– Negligent Discharge of Firearm
Defendant
contends there is insufficient evidence to support his conviction of count 3,
discharging a firearm in a grossly negligent manner. (§ 246.3, subd. (a).) Specifically, defendant argues that there is
no substantial evidence that he acted with gross negligence.
1. Standard of Review
In
reviewing a claim of insufficiency of the evidence on appeal, “ ‘the relevant
question is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’ †(People v. Johnson (1980) 26 Cal.3d
557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307,
318-319.) “An appellate court must view
the evidence in the light most favorable to respondent and presume in support
of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.†(People v. Reilly (1970) 3 Cal.3d 421, 425.)
2. Analysis
“[T]he
elements of section 246.3(a) are: ‘(1)
the defendant unlawfully discharged a firearm; (2) the defendant did so
intentionally; (3) the defendant did so in a grossly negligent manner which
could result in the injury or death of a person.’ [Citations.]â€
(People v. Ramirez (2009) 45
Cal.4th 980, 986 (Ramirez), quoting People
v. Alonzo (1993) 13 Cal.App.4th 535, 538 (Alonzo).)
In
Legislature enacted section 246.3 to criminalize “celebratory gunfire in an
urban setting,†which “could cause injury or death.†(Ramirez,
supra, 45 Cal.4th at p. 990.) The
court rejected the argument that the statute requires “proof that a given
person was actually so endangered,†since “[n]o one knows where shots fired
recklessly into the air are likely to land.â€
(Ibid.)
In
straight up into the air outside of a 7‑Eleven store, firing it two
times. The store was located in a busy
area and there had been a lot of pedestrian traffic going in and out of the
store. The Court of Appeal affirmed the
denial of the defendant’s section 995 motion, finding that his “grossly
negligent behavior could have resulted in injury or death to a person.†(Alonzo,
supra, 13 Cal.App.4th at p. 540.)
Defendant
contends that in this case, there is no substantial evidence to support the
jury’s finding that his act of shooting the gun into the ceiling had the
potential for injuring anyone. He claims
that Alonzo is distinguishable,
because “[u]nlike shooting a gun into the sky, where the bullet will again fall
and might injure someone, Johnson’s act was unlikely to result in a stray
bullet.â€
We disagree
that defendant’s act of shooting at a ceiling did not have the potential for
injuring anyone. The California Supreme
Court has found that shooting into an inhabited dwelling house is
on evidence that persons were present. (
310, overruled on other grounds by People
v. Chun (2009) 45 Cal.4th 1172, 1199.)
Likewise, “shooting at an occupied motor vehicle involves a clear danger
to human life,†even if the shots are “fired at portions of a car, such as the
wheels, in a manner that presents no risk to the car’s occupants.†(People
v. Tabios (1998) 67 Cal.App.4th 1, 10, disapproved on other grounds by
1199.) And, as noted above, in
the court confirmed that section 246.3 does not require proof that a given
person was actually endangered or proof of where shots fired will end up.
In this
case, we determine there is sufficient evidence to uphold the jury’s finding
that defendant’s act of shooting into the ceiling “could have resulted in
injury or death to a person.†(
540.) The prosecution was not required
to prove exactly how firing the gun into the ceiling could have caused
injury. Based on the evidence introduced
at trial, it would not be speculative to find, for instance, that a bullet
could have ricocheted off the ceiling or dislodged a fixture. Thus, the jury reasonably found that
defendant’s act of firing the gun was grossly negligent and “could have
resulted in injury or death to a person.â€
(Ibid.)
D. Probation Condition
As a
condition of probation, the trial court ordered that defendant “not associate
with any individual you know, reasonably should know or are told by probation
to be on any form of probation or parole supervision.†Defendant contends this condition is
unconstitutionally vague.
name="_ftnref6" title="">[6]
“[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.]†(
In
considered a probation condition that ordered the defendant not to associate
with anyone “ ‘disapproved of by probation.’ †(Sheena
K., supra, 40 Cal.4th at p. 890.)
The court found that “in the absence of an express requirement of
knowledge,†the probation condition was unconstitutionally vague. (Id.
at p. 891.) This court reached a similar
result in People v. Leon, where the
challenged probation condition
ordered: “ ‘No association with gang
members.’ †(People v. Leon, supra, 181 Cal.App.4th at p. 949.) This court found the probation condition
constitutionally defective because it “lack[ed] an explicit knowledge
requirement.†(Id. at p. 950.) Without the
knowledge qualification, the condition rendered the defendant “vulnerable to
criminal punishment for ‘associating with persons not known to him to be gang
members.’ [Citation.]†(Ibid.) Therefore, this court ordered the probation
condition modified to read as follows: “ ‘You are not to associate with any
person you know to be or the probation officer informs you is a member of a
criminal street gang.’ †(
In this
case, the issue is not the absence of an express knowledge requirement, but the
insertion of a constructive knowledge requirement. Defendant contends the inclusion of the
phrase “reasonably should know†fails to provide him with fair warning. He argues that as worded, the condition does
not tell him how certain he must be of a person’s probation or parole status.
The use of
the phrase “suspect†rendered a probation condition invalid in
1070 (Gabriel). The probation condition ordered the defendant
not to “ ‘be present in any area you know, suspect, or are told by the
[p]robation [o]fficer to be a gang-gathering area’ †and not to “
‘associate with any individuals you know or suspect to be gang members, drug
users, or on any form of probation or parole supervision.’ †(Id.
at p. 1073.) This court ordered the
condition modified to delete the phrase “suspect,†noting that “suspect†means
“ ‘to imagine (one) to be guilty or culpable on slight evidence or without
proof’ or ‘to imagine to exist or be true, likely, or probable.’ [Citation.]â€
(Ibid.) This court
found that the word “suspect†failed to provide the defendant “with adequate
notice of what is expected of him when he lacks actual knowledge that a person
is a gang member, drug user, or on probation or parole,†and it also rendered
the condition “insufficiently precise for a court to determine whether a
violation has occurred.†(
In contrast
to the term “suspect†(Gabriel, supra, 189 Cal.App.4th at p. 1073), the
phrase “reasonably should know†imposes an objective standard and requires a
minimal level of objective justification.
The word “reasonable†means “being in accordance with reason.†(Merriam-Webster’s Collegiate Dict. (10th ed.
1999) p. 974 (Webster’s).) The word
“should†has the function of “express[ing] obligation.†(Webster’s at p. 1085.) Thus, in the probation condition at issue,
the phrase “reasonably should know†requires defendant to stay away from an
individual who he has a rational ground to know has a certain status – i.e.,
that of being on probation or parole.
The phrase
used here – “reasonably should know†– was ordered included in a probation
condition in People v. Turner (2007)
155 Cal.App.4th 1432 (Turner). The original probation condition ordered that
the defendant “ ‘[n]ot associate with persons under the age of 18 unless
accompanied by an unrelated responsible adult.’ †(Id.
at p. 1435.) The
condition did “not pass constitutional muster under the vagueness
doctrine.†(Ibid.) The court explained,
“A person may reasonably not know whether he or she is associating with someone
under the age of 18. Fair notice, as
described in Sheena K., is not possible unless the probation condition
is modified to require that defendant must either know or reasonably should know that persons are under 18 before he is
prohibited from associating with them.â€
(Id. at p. 1436, italics
added.)
Respondent
points out that the Turner court
included the phrase “ ‘reasonably should know’ †to ensure that probation
condition passed constitutional muster.
(Turner, supra, 155
Cal.App.4th at p. 1436.) Defendant,
however, argues that Turner is
distinguishable: “A person can look
like a minor, or sound like a minor, or act like a minor: a person’s skin, height, voice, and manner
may all help someone reasonably guess whether they are over or under 18 years
old. But there is no way to look at or
hear a person, and know whether they are on probation or parole.â€
In the
context of penal statutes, courts have determined that culpability based on the
“reasonably should know†constructive knowledge standard is not vague. For instance, in In re Jorge M. (2000)
23 Cal.4th 866, the California Supreme Court determined that proving a
violation of the Assault Weapons Control Act (AWCA) required showing “that a
defendant charged with possessing an unregistered assault weapon knew or
reasonably should have known the characteristics of the weapon bringing it
within the registration requirements of the AWCA.†(Id. at pp.
869-870.) Courts have likewise upheld
the constitutionality of penal statutes that refer to a person who the
defendant reasonably should know to be a peace officer. (See People v. Rodriguez (1986) 42
Cal.3d 730, 779-782 [finding constitutional special circumstance of peace
officer murder under section 190.2, subdivision (a)(7), which applies to a
defendant who has intentionally killed another who the defendant “reasonably
should have known†was a peace officer engaged in the performance of official
duty]; People v. Mathews (1994) 25 Cal.App.4th 89, 97-98 [finding
constitutional former section 417, subdivision (b), which prohibited a
defendant from exhibiting a firearm in the presence of another when the
defendant “reasonably should know†the person is a peace officer engaged in the
performance of official duty].)
We conclude
that the probation condition here is not rendered unconstitutionally vague by
the fact it contains an element of constructive knowledge. A probation condition, like a penal statute,
gives rise to criminal culpability for its violation. A probation condition that prohibits
association with persons the defendant knows are within a certain class,
therefore, may also prohibit association with persons the defendant reasonably
should know are within that class.
Although it may not be immediately obvious based on appearance whether
someone is on probation or parole, the constructive knowledge standard will
prevent defendant from being penalized for violating the court’s order when he
did not know, and could not reasonably have known, that the person was on
probation or parole.
Accordingly,
we determine that the probation condition prohibiting defendant from
associating with individuals who he knows or “reasonably should know†to be on
any form of probation or parole supervision is not unconstitutionally vague.
E. Custody Credits
At the
sentencing hearing, the trial court awarded defendant 66 days of actual custody
credit and 32 days of conduct credit, for a total of 98 days of credit. Thus, the trial court awarded him conduct credits
at a rate of two days for every four days of actual custody. Defendant contends he is entitled to custody
credits at a rate of two days for every two days of actual custody, under the
version of section 4019 that became operative on October 1, 2011.
1. Statutory Background
Section
4019 specifies the rate at which a prisoner can earn conduct credit while in
local custody.
title="">[7] When defendant committed his crimes in 2009,
section 4019 allowed prisoners to earn two days of presentence conduct credit
for every four days of actual local custody:
a two-for-four rate. (Former § 4019, subd. (f), as
amended by Stats. 1982, ch. 1234, § 7; see People
v. Brown (2012) 54 Cal.4th 314, 318 (Brown).)
Effective
January 25, 2010, section 4019 was amended to allow certain eligible prisoners
to earn two days of conduct credit for every two days of actual local
custody: a two-for-two rate. (Stats. 2009-2010, 3rd Ex. Sess., ch. 28, §
50; see Brown, supra, 54 Cal.4th
at p. 318.) The amendment
maintained the two-for-four rate for prisoners who were required to register as
a sex offender, prisoners were committed for a serious felony (see § 1192.7,
subd. (c)), and prisoners who had a prior conviction for a serious or violent
felony. (Former § 4019, subds. (b)(2)
& (c)(2), as amended by Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 50; see Brown, supra, at p. 319, fn. 5.)
Effective
September 28, 2010, section 4019 was amended again. (Stats. 2010, ch. 426, § 2; see Brown,
supra, 54 Cal.4th at p. 322, fn. 11.) The Legislature restored the less favorable
two-for-four presentence conduct credit rate for prisoners who committed crimes
after September 28, 2010. (Stats. 2010,
ch. 426, § 2.)
The current
version of section 4019 became operative on October 1, 2011. This version provides for two days of conduct
credit for every two days of
actual custody, and it does not exclude from its ambit a defendant with a
current or prior serious felony conviction, nor a defendant required to
register as a sex offender. (§ 4019,
subds. (b) & (c); see Stats. 2011-2012, 1st Ex. Sess., ch. 12, § 35.) However, the October 1, 2011 amendment to
section 4019 provided that it was prospective only: “The changes to this section enacted by the
act that added this subdivision shall apply prospectively and shall apply to
prisoners who are confined to a county jail . . . 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).)
2. Analysis
Defendant
committed the offenses on August 26, 2009, before any of the recent changes to
section 4019. He served two days in
actual custody from August 26, 2009 to August 27, 2009. He then served another 64 days in actual
custody from August 24, 2011 to October 26, 2011, the date of sentencing.
Defendant’s
offenses included the crime of discharging a firearm in a grossly negligent
manner. (§ 246.3, subd. (a).) Since the evidence established that defendant
personally used the firearm, this was a “felony in which the defendant
personally used a dangerous or deadly weapon†and thus a serious felony under
section 1192.7, subdivision (c)(23).
(See People v. Golde (2008)
163 Cal.App.4th 101, 111 [violation of section 246.3 is a serious felony if the
defendant personally used the firearm].)
Therefore, defendant was not eligible for two-for-two credits under the
January 25, 2010 version of section 4019.
Defendant
contends he is entitled to two-for-two credits under the October 1, 2011
version of section 4019 despite two facts:
(1) his offense was committed prior to the statute’s operative date and
(2) section 4019, subdivision (h) specifies that the only new credit scheme
applies only to prisoners who are confined to a local custodial facility “for
a crime committed on or after October 1, 2011.â€
Defendant presents this argument even though it has been rejected
in footnotes in two recent California Supreme Court opinions. (See People
v. Lara (2012) 54 Cal.4th 896, 906, fn. 9; Brown,
Defendant
claims section 4019, subdivision (h) contains a “potential conflict.†He points out that while it states that the
changes are to “apply prospectively . . . to prisoners who are confined to
a county jail . . . for a crime committed on or after October 1, 2011,†it also
states that “[a]ny days earned by a prisoner prior to October 1, 2011, shall be
calculated at the rate required by the prior law.†(§ 4019, subd.
(h).) Defendant reasons that since a
person cannot be earning credits prior to the commission of a crime, the latter
provision must mean that all persons confined after October 1, 2011 earn
conduct credits at the two-for-two rate.
In the
opening brief, defendant based his argument on dicta from this court’s decision
in People v. Olague (2012) 205
Cal.App.4th 1126, review granted Aug. 8, 2012, S203298. “An opinion is no longer considered published
if the Supreme Court grants review (Cal. Rules of Court, rule 8.1105(e)(1)) and
may not be relied on or cited (Cal. Rules of Court, rule 8.1115(a)).†(People
v. Kennedy (2012) 209 Cal.App.4th 385, 400 (Kennedy).)
In his
reply brief, defendant acknowledges that his argument was rejected in
1546 (Ellis). In Ellis,
the court held that the October 1, 2011 amendment to section 4019 “applies only
to eligible prisoners whose crimes were committed on or after that date.†(Id.
at p. 1548.) The Ellis court rejected the statutory interpretation argument that
defendant makes here. The court held
that because the Legislature specified that the amendment applied
“prospectively†(§ 4019, subd. (h)), its “clear intent was to have the enhanced
rate apply only to those defendants who committed their crimes on or
after October 1, 2011. [Citation.]†(
court declined to find that the second sentence of section 4019,
subdivision (h) extends “the enhanced rate to any other group.†(Ibid.) Rather, that sentence “merely specifies the
rate at which all others are to earn conduct credits.†(Ibid.) This court’s decision in Kennedy, supra, 209 Cal.App.4th 385 is in accord. (Id.
at p. 399 [“according to the explicit language of the statute, the 2011
amendment to Penal Code section 4019 applies only to crimes that were
‘committed on or after October 1, 2011’ â€].)
For the
first time in his reply brief, defendant contends that he is entitled to
two-for-two conduct credits under the equal protection clauses of the state and
federal constitutions. He acknowledges
that in Brown, the California Supreme
Court rejected an equal protection challenge to prospective-only application of
the January 25, 2010 amendment to section 4019.
(Brown, supra, 54 Cal.4th at
p. 330.) Defendant argues for a
different result, pointing out that the October 1, 2011 version of section 4019
distinguishes between prisoners based on their date of offense rather than
their date of custody.
We normally
do not consider arguments presented for the first time in a reply brief. (People
v. Baniqued (2000) 85 Cal.App.4th 13, 29 [“a point raised for the first
time therein is deemed waived and will not be considered, unless good reason is
shown for failure to present it beforeâ€].)
However, we do note that we have
previously rejected the same equal protection challenge that defendant makes in
this case. (Kennedy, supra, 209 Cal.App.4th at p. 399 [“the Legislature could
rationally have believed that by making the 2011 amendment to section 4019 have
application determined by the date of the offense, they were preserving the
deterrent effect of the criminal law as to those crimes committed before that
dateâ€]; see also Ellis, supra, 207
Cal.App.4th at p. 1552.)
In sum,
defendant is not entitled to any additional conduct credits.
Disposition
The
judgment is affirmed.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
Márquez,
J.
name="_ftn1" title=""> [1]
Unspecified section references are to the Penal Code.
name="_ftn2" title=""> [2]
Since defendant and Chantea Johnson have the same surname, we will refer to
Chantea by her first name for purposes of clarity and not out of disrespect.
