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opinion has not been certified for publication or ordered published for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.
MARLON JOHNSON,
Defendant and
Appellant.
H037980
(Monterey
County
Super. Ct.
No. SS102192A)
Defendant
Marlon Johnson appeals after conviction, by jury trial, of
structure in violation of Penal Code section 452, subdivision (b).
with a number of conditions, including some barring him from using or
possessing alcohol, drugs, and weapons.
On appeal,
defendant contends: (1) the trial court
erred by failing to give a unanimity instruction, since there was evidence that
he caused two separate fires; (2) the trial court erred by instructing the
jury, pursuant to CALCRIM No. 359, that it could rely on his out-of-court
statements to convict him if “slight†additional evidence supported a
“reasonable inference that a crime was committedâ€; and (3) some of the
probation conditions were unconstitutionally vague.
We will
modify the challenged probation conditions but affirm the judgment in all other
respects.
Background
A. Defendant’s Eviction
In
September of 2009, defendant became a tenant at 369
Main Street.
He lived in apartment 308
on the top floor.
On September 3, 2010, the building’s
property manager served defendant with an eviction notice. There were several reasons for his
eviction. Defendant had paid the rent
late, dismantled the smoke alarm in his apartment, and violated the building’s
no-smoking rule. Defendant asked the
property manager whether he could stay in the apartment if he paid his rent,
repaired a damaged door, and reimbursed the cost of replacing the smoke alarm,
which had been restored to working condition.
The property manager told him that staying was not “an option.â€
B. The Fire
On the
afternoon of September 20, 2010, the Salinas Fire Department received a report
of smoke in the building at 369 Main Street.
Firefighters initially used an infrared thermometer to scan the walls,
but it did not detect anything. The
battalion chief then used a thermal imaging camera and found light smoke coming
from defendant’s apartment.
Firefighters
entered defendant’s apartment, which was filled with a light haze. They first noticed that two stove burners
were on “high,†with shirts or rags smoldering on top of them. There was no food in pans on those
burners. There were some dark marks on
the stove top, but “[i]t was hard to tell if it was just grime or fire damage,â€
particularly since the entire apartment was “really untidy.â€
Firefighters
then found a second source of the smoke.
Near defendant’s bed, the floor was smoldering. A bunch of clothes were piled up in that
spot. The carpet had burned through to
the particle board underneath it. The
burn was in an oblong shape and covered a three-foot area. The burn was deepest in the center,
indicating that there had been some kind of accelerant. The burn would not have been caused by simply
dropping a match onto the carpet.
Thomas
Wiley, who was a fire marshal at the time, smelled an acetone odor and cut out
a piece of the carpet. Firefighter David
Furey noticed a half-full bottle of nail polish remover on the floor but he did
not collect it or determine whether or not it contained acetone. There was no evidence that the carpet fire had
been ignited by any other means, such as electrical cords or wiring.
The smoke
detector on the ceiling of the apartment did not work when the firefighters
tested it. The wires had been tampered
with and the back-up battery had been removed.
C. Defendant’s Interview
The
property manager called defendant’s cell phone to tell him about the fire. Defendant said he did not know what had
happened. Although defendant said he was
“right down the street,†he did not arrive at the building until one hour later.
When
defendant arrived at his apartment, Fire Marshal Wiley asked him about the
fire. Defendant became agitated. He was subsequently arrested and interviewed
by Salinas Police Officer Christopher Silva and Fire Marshal Wiley.
During the
interview, defendant said he did not know how the fire could have started, but
suggested he might have “left something burning.†When told, “you left the stove on,†defendant
admitted he had forgotten and “was rushing.â€
Asked about
the fire on the floor next to his bed, defendant again said he did not know
what had happened. He denied that he had
been smoking in the room. He also denied
having any acetone, but he admitted he might have spilled some nail polish
remover and that he had been playing with a lighter. Defendant described “flicking †his
lighter and matches. Defendant also
stated that he had spilled “almost a whole bottle†of nail glue.
During a
subsequent interview, defendant clarified that by “flicking†matches, he meant
he would light a match, blow it out, then throw it. He had flicked three matches. Defendant was sure that the first two had
gone into a trash bag near the site of the spill, but he was not sure what
happened to the third match.
Nail glue,
matches, and a lighter were found in defendant’s backpack, which was in his
property at jail. The police did not go
back to defendant’s apartment to look for a bottle of nail polish.
D. Expert Testimony
Fire
Marshal Wiley testified that in his opinion, the carpet fire was intentionally
set. He based this opinion in part on
the disabled smoke detector and the fact that defendant was in the process of
being evicted, as well as the lack of any apparent accidental cause.
Defense
expert Samuel Jeffrey Campbell would have concluded that the cause was “undeterminedâ€
rather than intentional. It was possible
that the carpet fire had been started with ignitable liquid. The fire could not have been started with a
dropped match or cigarette; it needed some kind of fuel. If it had been started with matches, he would
have expected to find remnants.
E. Charges, Verdicts, and
Sentencing
Defendant
was charged, by information, with arson (count 1; § 451, subd. (b)) and, as a
lesser-included offense, recklessly causing fire to an inhabited structure
(count 2; § 452, subd. (b)).
The jury
found defendant not guilty of count 1 (arson), but it convicted him of count 2
(recklessly causing fire to an inhabited structure). At the sentencing hearing, the trial court
suspended imposition of sentence and placed defendant on probation for four
years, under a number of terms and conditions, including some barring him from
using or possessing alcohol, drugs, and weapons.
Discussion
A. Unanimity Instruction
Defendant
contends the trial court erred by failing to instruct the jury that it had to
unanimously agree whether the stove fire or floor fire constituted the charged
offenses.
1. Proceedings Below
In his
trial brief, defendant requested the jury be instructed with CALCRIM
No. 3500, which would have told the jury that the People had “presented
evidence of more than one act to prove that the defendant committed†the
charged offense and that the jury “must not find the defendant guilty unless
you all agree that the People have proved that the defendant committed at least
one of these acts and you all agree on which act (he/she) committed.â€
The jury
instruction conference was held in chambers just before the prosecution
finished presenting its case. The jury
instruction conference was not reported.
The trial court did not instruct the jury with CALCRIM No. 3500.
The trial
court instructed the jury on the elements of “unlawfully causing a fire that
burned an inhabited structure, in violation of Penal Code section 452†pursuant
to CALCRIM No. 1531. The jury was
instructed that the People had to prove, inter alia, that defendant “set fire
to or burned or caused the burning of a structure or property†and that “the
fire burned an inhabited structure.†The
instruction defined a “structure†as “a building.â€
During
argument to the jury, the prosecutor emphasized that the jury could not convict
defendant of count 2 unless it found he “set fire or actually caused the
burning of a structure.†He reminded the
jury that it had to find “that the inhabited structure was burned.â€
The prosecutor
argued that “this fire†was caused by defendant intentionally spilling the nail
polish remover and using it as an accelerant.
The prosecutor argued that there were two “sites of origin for the
fire.†He argued it was more than a
“coincidence that on the same date at the same time two accidental fires are
started.†He reiterated that “we have a
separate origin for that fire†and that it could not have been accidental since
there were “two different locations for such fire.†When arguing about count 2, the prosecutor
likewise referred to “this fire, these multiple fires.â€
Defense
counsel similarly referred to “the fire†in the singular throughout his
argument to the jury. He argued that
defendant was not guilty because “the fire†was an accident.
In closing,
the prosecutor argued that recklessness was shown by defendant’s act of
“flicking matches in that apartment in that manner towards a trash receptacle
and a pool of fluid.†He argued that
“based on that alone, you should return a verdict of guilty on Count 2.â€
2. Analysis
“In
a criminal case, a jury verdict must be unanimous. . . . Additionally, the jury must agree unanimously
the defendant is guilty of a specific
crime. [Citation.] Therefore, cases have long held that when the
evidence suggests more than one discrete crime, either the prosecution must
elect among the crimes or the court must require the jury to agree on the same
criminal act. [Citations.]†(People v. Russo (2001) 25 Cal.4th
1124, 1132 (Russo).)
“This
requirement of unanimity as to the criminal act ‘is intended to eliminate the
danger that the defendant will be convicted even though there is no single
offense which all the jurors agree the defendant committed.’ [Citation.]
. . . ‘The [unanimity]
instruction is designed in part to prevent the jury from amalgamating evidence
of multiple offenses, no one of which has been proved beyond a reasonable
doubt, in order to conclude beyond a reasonable doubt that a defendant must
have done something sufficient to convict on one count.’ [Citation.]â€
(Russo, supra, 25 Cal.4th at
p. 1132.)
Whether or
not a unanimity instruction is requested, it should be given “ ‘where the
circumstances of the case so dictate.’
[Citation.]†(People v. Riel
(2000) 22 Cal.4th 1153, 1199 (Riel).) “[T]he unanimity instruction is appropriate
‘when conviction on a single count could be based on two or more discrete
criminal events,’ but not ‘where multiple theories or acts may form the basis
of a guilty verdict on one discrete criminal event.’ [Citation.]
In deciding whether to give the instruction, the trial court must ask
whether (1) there is a risk the jury may divide on two discrete crimes and not
agree on any particular crime, or (2) the evidence merely presents the
possibility the jury may divide, or be uncertain, as to the exact way the
defendant is guilty of a single discrete crime.
In the first situation, but not the second, it should give the unanimity
instruction.†(Russo, supra, 25 Cal.4th at p. 1135.)
It appears
that here, the trial court determined that there was no risk the jury would
“divide on two discrete crimes and not agree on any particular crime.†(Russo,
supra, 25 Cal.4th at p. 1135.) We
agree that the “ ‘circumstances of the case’ †did not
“ ‘dictate’ †that a unanimity
instruction be given. (Riel, supra,
22 Cal.4th at p. 1199.) In light of the
evidence presented and the jury instructions for the charged offenses, the
trial court could reasonably find that there was no danger any of the jurors
would vote to convict defendant of arson or recklessly causing fire to an
inhabited structure based on the stove fire alone. The jury instructions for the charged
offenses required the jury to find that the fire actually “burned an inhabited
structure,†and they defined “structure†as “a building.†However, there was no substantial evidence
that the stove fire caused any part of the structure to burn. Even if the stove itself is considered a
fixture and thus part of the structure, the evidence did not establish that the
stove was burned, charred, or destroyed.
(See In re Jesse L. (1990) 221
Cal.App.3d 161, 168; People v. Lee
(1994) 24 Cal.App.4th 1773, 1778 (Lee)
[arson to inhabited structure may be based on burning of personal property that
is “affixed to the real property so securely and permanently†that is has
become “an integral part of the structureâ€].)
While there were “some dark markings†on the stove, firefighter Furey
could not tell if “it was just a lack of cleaning or if it was smoke
damage.†This testimony would not have
supported a finding that the stove fire burned any part of the structure. In contrast, the evidence showed that the
floor fire did burn part of the structure—i.e., the carpet and the flooring
underneath it. (See Lee, supra, at p. 1778 [“the jury could reasonably find the carpet
in this case was a fixtureâ€].)
We find
support for our analysis in Riel, supra, 22 Cal.4th 1153. In Riel,
an accomplice testified that he, the defendant, and a third person robbed,
kidnapped, and murdered a truck stop attendant.
(Id. at pp. 1172-1173.)
The accomplice testified that they first robbed the attendant at the
truck stop and that later, while they were driving, they robbed the attendant
of his wallet. Only the truck stop
robbery was corroborated by the physical evidence.
On appeal,
the defendant argued the court should have given a unanimity instruction
because there were two distinct robberies—one at the truck stop and one in the
car. (Riel, supra, 22 Cal.4th at
p. 1199.) The Supreme Court held that a
unanimity instruction was unnecessary.
The court acknowledged that it was “conceivable that some, or even all,
of the jurors might have had a reasonable doubt that the robbery in the car
occurred. They might have considered it
a possible embellishment on [the accomplice/witness’s] part. These jurors might have found defendant
guilty based on the truck stop robbery but not the car robbery. But the reverse is not true. If the jury believed [the witness], defendant
was clearly guilty of the truck stop robbery, which the physical evidence shows
occurred. It is inconceivable that a
juror would believe [the witness’s] testimony that defendant committed the
robbery in the car but somehow find he did not commit the truck stop robbery.†(Id. at p. 1200.)
A similar analysis
applies here. It is conceivable that
some or all of the jurors might have had a reasonable doubt that the stove fire
caused the burning of a structure, and these jurors might have found defendant
guilty based on the floor fire only.
“But the reverse is not true.†(Riel,
supra, 22 Cal.4th at p. 1200.) As
there was no substantial evidence that the stove fire caused any part of the
structure to burn, it is inconceivable that a juror would vote to convict
defendant based on the stove fire only.
A unanimity
instruction was also unnecessary in light of the prosecutor’s argument to the
jury. No unanimity instruction is
required when the prosecutor elects in opening statement or in argument to the
jury which among several acts should be the basis for conviction (People v.
Diaz (1987) 195 Cal.App.3d 1375, 1382-1383; People v. Hawkins (2002)
98 Cal.App.4th 1428, 1455) or relies on two or more acts that amount to one
crime. (People v. Turner (1983)
145 Cal.App.3d 658, 681 [“the prosecutor . . . argued the taking of the money,
gold chains and the car constituted a single robberyâ€], disapproved on other
grounds by People v. Majors (1998) 18 Cal.4th 385, 411 and by People
v. Newman (1999) 21 Cal.4th 413, 422, fn. 6; see also People v.
Stankewitz (1990) 51 Cal.3d 72, 100 (Stankewitz)
[no unanimity instruction is required “when the acts alleged are so closely
connected as to form part of one transactionâ€].)
Here, the
prosecutor’s argument made it clear that the charges were based on one fire
that had two “sites of origin.†He
pointed out it could not have been a “coincidence that on the same date at the
same time two accidental fires are started.â€
His argument focused almost entirely on the evidence showing that
defendant intentionally or recklessly set the floor fire. He never argued that the jury could convict
defendant based on the stove fire alone.
Further, defendant presented “essentially the same defense to each of
the actsâ€â€”that both fires were accidental.
(Stankewitz, supra, 51 Cal.3d
at p. 100.)
Even
assuming that a unanimity instruction should have been given, there are no
grounds for reversal, whether we apply the “harmless beyond a reasonable doubtâ€
standard of Chapman v.
California (1967) 386 U.S. 18, 24 or the prejudice test of People v.
Watson (1956) 46 Cal.2d 818, 836, which is whether “it is reasonably
probable that a result more favorable to the appealing party would have been
reached in the absence of the error.â€
(See People v. Vargas (2001)
91 Cal.App.4th 506, 561-562 [noting “split of authority on the proper standard
for reviewing prejudice when the trial court fails to give a unanimity
instructionâ€]; People v. Milosavljevic
(2010) 183 Cal.App.4th 640, 647 [same].)
Defendant
contends the error cannot be found harmless because the jury could have found
that he acted recklessly in leaving the stove on while finding he set the floor
fire by accident. However, as pointed
out above, based on the evidence presented, no reasonable juror would have
found that defendant caused the structure to burn by setting the stove
fire. Moreover, the prosecutor never
advocated for conviction based on the stove fire alone. Nearly all of the evidence and arguments were
focused on the floor fire. On this
record, it is not reasonably probable that a different result would have been
reached if the jury had been given a unanimity instruction, and the trial
court’s failure to give such an instruction was harmless beyond a reasonable
doubt.
B. CALCRIM No. 359
Defendant
contends that his federal right to due process was violated when the trial
court instructed the jury with CALCRIM No. 359 regarding the corpus delicti
rule. He contends the instruction
improperly diluted the reasonable doubt standard because it told the jury that
his out-of-court statements were sufficient proof of his guilt if there was
“slight†corroborating evidence.
1. Instruction Given
The trial
court instructed the jury pursuant to CALCRIM No. 359 as follows: “The defendant may not be convicted of any
crime based on his out-of-court statements alone. You may rely on the defendant’s out-of-court
statements to convict him if you conclude that other evidence shows the charged
crime was committed. That other evidence
may be slight and need only be enough to support a reasonable inference
that a crime was committed. [¶] The identity of the person who committed the
crime may be proved by the defendant’s statements alone. [¶]
You must not convict the defendant unless the People have proved his
guilt beyond a reasonable doubt.â€
(Italics added.)
2. Analysis
Defendant
argues that the use of the word “slight†in CALCRIM No. 359 impermissibly
lessened the prosecutor’s burden of proof.
He relies on federal cases holding that it is error to tell a jury that
a defendant can be convicted of conspiracy when there is only “slight evidenceâ€
of his or her participation. (See
1980) 626 F.2d 494, 500.)
The
Attorney General contends that defendant forfeited this claim because he did
not object below. The Attorney General
also argues that CALCRIM No. 359 provides a correct statement of the law (see
1491, 1498), and that when the instructions are considered as a whole, the jury
was clearly informed it could only convict defendant if it found him guilty
beyond a reasonable doubt.
Defendant
replies that his claim has not been waived or forfeited. He relies on section 1259, which provides
that “[t]he appellate court may . . . review any instruction given . . . even
though no objection was made thereto in the lower court, if the substantial
rights of the defendant were affected thereby.â€
Assuming
defendant’s claim has not been forfeited, we find unpersuasive his argument
that the instruction lessened the prosecutor’s burden of proof.
“In considering
a claim of instructional error we must first ascertain what the relevant law
provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable
likelihood that the jury understood the instruction in a manner that violated
the defendant’s rights.†(People v.
Andrade (2000) 85 Cal.App.4th 579, 585.)
“ ‘ “[T]he correctness of jury instructions is to be determined from the
entire charge of the court, not from a consideration of parts of an instruction
or from a particular instruction.†’
[Citations.]†(People v.
Musselwhite (1998) 17 Cal.4th 1216, 1248 (Musselwhite); People v.
Carrasco (2006) 137 Cal.App.4th 1050, 1061 (Carrasco) [appellate
court must consider the jury instructions as a whole in determining their
correctness].)
CALCRIM No.
359 explains the corpus delicti rule.
Under this rule, “every conviction must be supported by some
proof of the corpus delicti aside from or in addition to
[defendant’s extrajudicial] statements, and . . . the jury must be so
instructed.†(People v. Alvarez
(2002) 27 Cal.4th 1161, 1165 (Alvarez).)
“This rule is intended to ensure that one will not be falsely convicted,
by his or her untested words alone, of a crime that never happened. [Citations.]â€
(Id. at p. 1169.)
“The
independent proof [of the corpus delicti] may be circumstantial and need not be
beyond a reasonable doubt, but is sufficient if it permits an inference of
criminal conduct, even if a noncriminal explanation is also plausible. [Citations.]
There is no requirement of independent evidence ‘of every physical act
constituting an element of an offense,’ so long as there is some slight or
prima facie showing of injury, loss, or harm by a criminal agency. [Citation.]
In every case, once the necessary quantum of independent evidence is
present, the defendant’s extrajudicial statements may then be considered for
their full value to strengthen the case on all issues. [Citations.]â€
(Alvarez, supra, 27 Cal.4th at p. 1171.) “The independent evidence may be
circumstantial, and need only be ‘a slight or prima facie showing’ permitting
an inference of injury, loss, or harm from a criminal agency, after which the
defendant’s statements may be considered to strengthen the case on all issues.†(Id. at p. 1181.)
Thus, the
jury in this case was properly instructed that it was required to take a
preliminary, cautionary step before considering whether the prosecution had
proven defendant’s guilt beyond a reasonable doubt. Specifically, before relying on defendant’s
out-of-court statements, the jury was required to first determine whether there
was “other evidence†showing that the charged crime was committed. It was proper to inform the jury that such
“other evidence may be slight and need only be enough to support a reasonable
inference that a crime was committed.â€
(CALCRIM No. 359; see Alvarez, supra, 27 Cal.4th at pp. 1171,
1181.) If the necessary quantum of
independent evidence was presented, defendant’s extrajudicial statements could
then be considered “for their full value to strengthen the case on all
issues.†(Alvarez, supra, 27
Cal.4th at p. 1171.) And, in this
regard, the jury was cautioned pursuant to CALCRIM No. 359 that it “must not
convict the defendant unless the People have proved his guilt beyond a
reasonable doubt.†Additionally, the
court instructed the jury with CALCRIM No. 220, which defines reasonable doubt,
informs the jury that “[i]n deciding whether the People have proved their case
beyond a reasonable doubt†the jury “must impartially compare and consider all
. . . evidence that was received throughout the entire trial,†and instructs
the jury that “[u]nless the evidence proves the defendant guilty beyond a
reasonable doubt, he is entitled to an acquittal and you must find him not guilty.â€
We thus
conclude that CALCRIM No. 359 correctly states that the “other evidenceâ€
showing that the charged crime was committed may be “slight.†(See Alvarez, supra, 27 Cal.4th at pp.
1171, 1181.) Further, in considering the
instructions as a whole that were given to the jury (Musselwhite, supra,
17 Cal.4th at p. 1248; Carrasco, supra, 137 Cal.App.4th at p. 1061), we
do not believe it was likely that the jury understood the instruction in a
manner that violated defendant’s right to due process.
C. Probation Conditions
In placing
defendant on probation, the trial court imposed a number of terms and
conditions, which included the following conditions regarding use and
possession of alcohol, drugs, and weapons:
“Totally
abstain from the use of any alcoholic beverages. Do not purchase or possess alcoholic
beverages. Stay out of places where
alcohol is the main item of sale. â€
“Do not use
or possess any alcohol, narcotics, intoxicants, drugs or other controlled
substances without the prescription of a physician.â€
“Do not
possess, receive or transport any firearms, ammunition or any deadly or
dangerous weapons. Immediately surrender
any firearms or ammunition you own or possess to law enforcement.†The signed minute order includes a statutory
reference to former section 12021 following this condition.
Defendant
contends that each of the above probation conditions are unconstitutionally
vague, in violation of his federal constitutional right to due process, because
they do not include “an actual knowledge mandate.â€
Since
probation conditions that implicate constitutional rights must be narrowly
drawn, the knowledge requirement in some probation conditions “should not be
left to implication.†(People v.
Garcia (1993) 19 Cal.App.4th 97, 102.)
Absent a requirement that the defendant knows he or she is disobeying
the condition, the defendant is vulnerable, and unfairly so, to punishment for
unwitting violations of it. (See People
v. Lopez (1998) 66 Cal.App.4th 615, 628-629.) An appellate court is empowered to modify a
probation condition in order to render it constitutional. (In re Sheena K. (2007) 40 Cal.4th 875,
892.)
With
respect to the conditions regarding use and possession of drugs and alcohol,
defendant relies mainly on People v.
Patel (2011) 196 Cal.App.4th 956 (Patel). In Patel,
a condition of probation prohibited the defendant “from drinking alcohol,
possessing it, or being in any place where it is the chief item of sale.†(Id. at
p. 959.) As the condition did not
“include a qualification that he must commit the proscribed conduct knowinglyâ€
(ibid.), the court modified it to
read: “ ‘Defendant shall abstain
from the consumption of any alcoholic beverage knowingly in any amount
whatsoever, and shall not knowingly possess alcohol, nor be in places where he
knows alcohol is the chief item of sale.’ †(Id.
at p. 961.)
The
Attorney General “does not object to the Court directing the trial court clerk
to modify the probation order to include scienter†as to the conditions
regarding use and possession of drugs and alcohol. We will so modify those conditions.
Regarding
the weapons condition, defendant relies primarily on People v. Freitas (2009) 179 Cal.App.4th 747 (Freitas). In
ordered that the defendant “ ‘[n]ot own, possess or have custody or control of
any firearms or ammunition.’ †(
the court cited former section 12021 and noted that “defendant, as a
felon, has no constitutional right to bear arms. [Citations.]†(Id.
at p. 751.) The court noted that it was
unnecessary “to specify that defendant must know a gun is a gun,†but agreed
that a knowledge element was necessary to ensure the defendant would not be
punished if he had “no knowledge of the presence of a firearm or ammunition†in
his possession, such as if he had borrowed a car that contained a gun in the
trunk. (Id. at p. 752.) The
court therefore modified the probation condition to order the defendant to “
‘not knowingly own, possess or have custody or control of any firearms or
ammunition.’ †(
This court disagreed with
‘You shall not own, possess, have within your custody or control any firearm or
ammunition for the rest of your life under Section[s] 12021 and 12316[,
subdivision] (b)(1) of the Penal Code.’ â€
(Id. at p. 840.) This court declined to modify the condition,
explaining that “where a probation condition implements statutory provisions
that apply to the probationer independent of the condition and does not
infringe on a constitutional right, it is not necessary to include in the
condition an express scienter requirement that is necessarily implied in the
statute.†(Id. at p. 843.) Thus,
because the condition “explicitly reference[d] sections 12021 and 12316†and
because knowledge was required under those statutes, the probation condition
did not need not be modified to add an explicit knowledge requirement. (Id.
at p. 846.)
With regard to the probation
condition in this case prohibiting appellant from possessing a firearm, the
rationale of Kim is not entirely applicable. As defendant points out, the probation
condition in this case is not the same as the statutory provision in former
section 12021, which prohibited a person convicted of a felony from possessing
firearms. Here, defendant was not only
prohibited from possessing any firearms, but also “any deadly or
dangerous weapons.†We will therefore
modify the condition to include an explicit knowledge requirement.
Further modification of the signed minute order,
which references former section 12021, is required in this case. Former section 12021 was repealed operative
January 1, 2012. (See
734, fn. 2; Stats. 2010, ch. 711, § 4.)
The statute forbidding, among other things, a felon to be in possession
of a firearm is now contained in section 29800. (See People
v. Correa (2012) 54 Cal.4th 331, 334, fn. 1; Stats. 2010, ch. 711, § 6,
operative Jan. 1, 2012.) Accordingly, to
avoid any confusion, we will modify the weapons condition by deleting the
reference to section 12021 and replacing it with a reference to section
29800.
Finally, the Attorney General
suggests we add the phrases “know or reasonably should know,†“reason to know,â€
and “know or suspect†if we modify the probation conditions regarding
possession and use of drugs and alcohol.
Defendant urges us not to include any kind of constructive knowledge
element, contending that such phrases would render the conditions vague.
This court previously held that “the
word ‘suspect’ fails to provide [a] 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 that “inclusion of this word renders
the condition insufficiently precise for a court to determine whether a
violation has occurred.†(
1070, 1073.) We decline to include the
word “suspect†in our modification of the probation conditions at issue here.
We do not decide the issue of whether inclusion
of the phrases “reasonably should know†and
“reason to know,†as proposed by
the Attorney General, is also necessary or proper. The Attorney General does not object to the inclusion of an
actual knowledge requirement as requested by defendant and only suggests, without any substantive analysis,
that the probation conditions include the “reasonably should know†and
“reason to know†language. We therefore decline to include these phrases
in the modified conditions.
Disposition
The
probation conditions regarding possession and use of alcohol, drugs, and
weapons, as specified in the trial court’s oral pronouncement on February 22,
2012 and in the trial court’s signed minute order regarding the February 22,
2012 proceedings, shall be modified to state as follows:
“Totally
abstain from the use of beverages you know to be alcoholic. Do not purchase or possess any beverage you
know to be alcoholic. Stay out of places
where you know that alcohol is the main item of sale.â€
“Do not
knowingly use or possess any alcohol, narcotics, intoxicants, drugs or other
controlled substances without the prescription of a physician.â€
“Do not
knowingly possess, receive or transport any firearms, ammunition or any deadly
or dangerous weapons. Immediately
surrender any firearms or ammunition you own or possess to law
enforcement. (Pen. Code, § 29800.)â€
As so
modified the judgment (order of probation) is affirmed.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
________________________________
ELIA, ACTING P.J.
________________________________
Márquez,
J.
name="_ftn1" title=""> [1]
All further statutory references are to the Penal Code unless otherwise
indicated.
name="_ftn2" title=""> [2]
Below, trial counsel objected to the drug and alcohol conditions on the basis
there was “no nexus to either the incident in this case or [defendant’s]
rehabilitation.â€
