P. v. Williams
Filed 12/9/13 P. v. Williams 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opinion has not been certified for publication or ordered published for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.
STEVEN WILLIAMS,
Defendant and
Appellant.
H039187
(Santa Clara
County
Super. Ct.
No. C1117755)
Steven Williams pleaded no contest to a felony violation of former Penal
Code section 245, subdivision (a)(1), assault by means of force likely to
produce great bodily injury. The
incident apparently occurred outside a San Jose club or bar.
The trial court granted probation on specified terms and
conditions. On appeal, defendant
Williams challenges only the following probation condition: "You shall not
have any contact with [the named victim]."
Defendant Williams argues that the probation condition is
unconstitutional on its face because it lacks an express knowledge
requirement. Defendant suggests that he
might not recognize the victim and unknowingly have contact with the victim by,
for example, accidently bumping into the victim on the street.
seek contact with him.
The People do not agree that a knowledge requirement must be
added. They also urge this court to
adopt the approach taken by the Third District Court of Appeal in
956. They suggest that, like the Third
District, this District should automatically imply a knowledge requirement in
every probation condition and, thereby, eliminate the need for explicit
modification. In Patel, the appellate court announced that henceforth it would "construe
every probation condition proscribing a probationer's presence, possession,
association, or similar action to require the action be undertaken knowingly"
and it would "no longer be necessary to seek a modification of a probation
order that fails to expressly include such a scienter requirement." (Id.
at pp. 960-961, fn. omitted.)
We find it unnecessary to expressly add a knowledge requirement to the
challenged probation condition or to imply such a requirement. "A probation condition 'must be
sufficiently precise for the probationer to know what is required of him, and
for the court to determine whether the condition has been violated,' if it is
to withstand a challenge on the ground of vagueness. (People
v. Reinertson (1986) 178 Cal.App.3d at pp. 324-325 . . . .)" (In re
Sheena K. (2007) 40 Cal.4th 875, 890.)
"[T]he underpinning of a vagueness challenge is the due process
concept of 'fair warning.' (
743, 751 . . . .) The
rule of fair warning consists of 'the due process concepts of preventing
arbitrary law enforcement and providing adequate notice to potential offenders'
(ibid.), protections that are 'embodied
in the due process clauses of the
federal and California Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7).' (Ibid.)
The vagueness doctrine ' "bars
enforcement of 'a statute which either forbids or requires the doing of an act
in terms so vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application.' " [Citations.]' (People
ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115 . . . (
adequate notice to those who must observe its strictures, but also "impermissibly
delegates basic policy matters to policemen, judges, and juries for resolution
on an ad hoc and subjective basis,
with the attendant dangers of arbitrary and discriminatory application." [Citation.]' (Id.
at p. 1116 . . . .) In
deciding the adequacy of any notice afforded those bound by a legal
restriction, we are guided by the principles that 'abstract legal commands must
be applied in a specific context,' and that, although not admitting of 'mathematical
certainty,' the language used must have ' "reasonable specificity." ' (Id.
at pp. 1116-1117. . . , italics in original.)" (Sheena K., supra, 40 Cal.4th at p.
890.)
In Sheena K., supra, 40 Cal.4th 875, a probation condition
prohibiting association with "anyone disapproved of by probation" was
challenged on vagueness grounds. (Id.
at pp. 878, 889.) The court observed that
"the probation condition did not notify defendant in advance with whom she
might not associate through any reference to persons whom defendant knew to be
disapproved of by her probation officer."
(Id. at pp. 891-892.) The Supreme Court determined that the
probation condition was unconstitutionally vague "in the absence of an
express requirement of knowledge." (Id.
at p. 891.)
The Supreme Court approved the appellate court's modification of the condition
"to require that defendant refrain from associating with anyone whom she
knew was disapproved of by her probation
at p. 880). (Id. at pp. 891-892.)
It found that the addition of the "qualification
that defendant have knowledge of who was disapproved of by her probation
officer" "secur[ed] the constitutional validity of the probation
condition." (Id. at p. 892.) The court
further stated: "In the interest of forestalling future claims identical
to defendant's based upon the same language, we suggest that form probation
orders be modified so that such a restriction explicitly directs the
probationer not to associate with anyone 'known to be disapproved of' by a
having authority over the minor." (Id.
at p. 892.)
In the present case, one of the People's arguments is that it is
unnecessary to add a knowledge requirement to defendant's probation condition because
it prohibits him from contacting a specific individual, not a class of
people. We think this distinction is dispositive.
The probation condition at issue in this case does not suffer from the
same deficiency addressed in Sheena K. The challenged "no contact"
condition does not describe a
general, prohibited class of people (e.g. persons who are disapproved by a probation
officer or gang members). A prohibited
class might include, unbeknownst to the probationer, a particular person as a
member and, therefore, the probationer might lack notice that he was required
to avoid contact with that person. In
contrast, in this case, the probation condition specifically names the one victim
with whom defendant must have no contact.
Defendant asserts that the victim was a stranger to him and suggests
that "quite a lot of contact between the two might occur without
[defendant] ever realizing" that the other person was the victim.
facial constitutional challenge to a probation condition. (See In
re Sheena K., supra, 40 Cal.4th at
pp. 885-889.) Further, the
reasonableness of the condition
name="_ftnref3" title="">[3]
and its constitutional adequacy with reference to the facts are not issues preserved
for review absent a timely and specific objection at the time of
sentencing. (People v. Welch (1993) 5 Cal.4th 228, 237; In re Sheena K., supra,
40 Cal.4th at pp.881-883, 889.) We reject defendant's argument that the
probation condition does not, on its face, afford him adequate
contact.
As to the People's request that we adopt the Third District's approach
in Patel, we again reject it as we have
in other cases. The Court of Appeal,
Fourth District, Division Three, declined to follow Patel, stating that "the superior court should revise its
standard probation conditions form to meet constitutional requirements." (People
v. Moses (2011) 199 Cal.App.4th 374, 381.) The Court of Appeal, Second District, Division
Three, also concluded that it was more appropriate to modify probation
conditions on a case-by-case basis and did not adopt the Patel approach. (
1188, fn. 7.) This court has likewise
declined to adopt the Patel approach.
(See People
v. Pirali (2013) 217 Cal.App.4th 1341, 1351.) It is the superior court's duty to fashion
appropriate probation conditions and it is our role as an appellate court to review
challenged probation conditions and remedy, if we can, any facial
constitutional defect. This case stands
as a good example why separate consideration of each individual case is the
correct approach. Accordingly, we will
continue to individually consider probation conditions challenged on appeal.
DISPOSITION
The judgment is affirmed.
________________________________
ELIA,
J.
WE CONCUR:
____________________________
RUSHING, P. J.
____________________________
PREMO, J.
word "contact," which presumably includes any type of communication
directed at the victim and physical touching.
(See New Oxford American Dictionary (3d ed. 2011)
name="_ftn2" title="">[2] Defendant
was present at the preliminary hearing at which the victim testified. At the plea hearing, it was understood that
defendant was a resident of Ohio and he would be returning to that state and
living there during the probationary period.
It is unclear whether, under the circumstances, it is possible that
defendant might not recognize the named victim in the future or they might have
an accidental encounter.
