Filed 9/18/26 P. v. Bloomberg CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D086279, D086360
Plaintiff and Respondent,
(Super. Ct. Nos.
v. SCD306472, SCD297003)
RYAN NOAH BLOOMBERG,
Defendant and Appellant.
CONSOLIDATED APPEALS from a judgment of the Superior Court of
San Diego County, Robert O. Amador, Judge. Affirmed.
Asya Ovsepyan, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
General, Arlene A. Sevidal, Senior Assistant Attorney General, Donald W.
Ostertag, Supervising Deputy Attorney General, and Anne Spitzberg, Deputy
Attorney General, for Plaintiff and Respondent.
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Ryan Noah Bloomberg appeals from a judgment entered after a jury
convicted him of a felony drug offense and the court imposed a sentence
including a period of mandatory supervision. He challenges a supervision
condition providing he was not to “knowingly own, transport, sell, or possess
any weapon, firearm, replica firearm or weapon, ammunition, or any
instrument used as a weapon.” Bloomberg contends the supervision
provision’s language, particularly the phrase “any weapon,” is
unconstitutionally vague. He asks us to modify the condition to read
“dangerous or deadly weapon” to avoid the constitutional infirmity. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Bloomberg was on felony probation in San Diego Superior Court Case
No. SCD297003 after pleading guilty to carrying a concealed dirk or dagger
(Pen. Code,1 § 21310) and failure to appear (§ 1320, subd. (b)). About six
months before his probation was to expire, police officers contacted him and
other individuals in an Ocean Beach park area in the early morning hours.
They searched Bloomberg and found what was later determined to be
methamphetamine in a fanny pack and one of his pants pockets.
A jury later convicted Bloomberg in San Diego Superior Court Case
No. SCD306472 of possession of methamphetamine (Health and Saf. Code,
§ 11395, subd. (b)(1)) while having two or more prior qualifying drug
convictions (Health and Saf. Code, §§ 11350, subd. (a), 11395, subd. (c)). The
court imposed a 24-month prison term, with Bloomberg to serve a split
1 Undesignated statutory references are to the Penal Code.
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sentence of 12 months in custody and 12 months on mandatory supervision.2
One of the supervision terms provides: “Do not knowingly own, transport,
sell, or possess any weapon, firearm, replica firearm or weapon, ammunition,
or any instrument used as a weapon.” Bloomberg’s counsel unsuccessfully
objected to the term on grounds the language “any instrument used as a
weapon” was vague.
DISCUSSION
I. Constitutional Vagueness Doctrine
The constitutional vagueness doctrine “derives from the due process
concept of fair warning [and] bars the government from enforcing a provision
that ‘forbids or requires the doing of an act in terms so vague’ that people of
‘common intelligence must necessarily guess at its meaning and differ as to
its application.’ [Citations.] To withstand a constitutional challenge on the
ground of vagueness, a probation condition must be sufficiently definite to
inform the probationer what conduct is required or prohibited, and to enable
the court to determine whether the probationer has violated the condition.
[Citations.] In determining whether the condition is sufficiently definite,
however, a court is not limited to the condition’s text. [Citation.] We must
also consider other sources of applicable law [citation], including judicial
construction of similar provisions. [Citations.] Thus, a probation condition
should not be invalidated as unconstitutionally vague ‘ “ ‘if any reasonable
2 More specifically, the court terminated Bloomberg’s probation and
sentenced him in the probation revocation case (case No. SCD297003) to 16
months for carrying a concealed dirk or dagger and a concurrent 16-month
sentence for failing to appear while out on his own recognizance. It imposed
an eight-month (one-third the midterm) sentence on the drug possession
conviction in case No. SCD306472, then split the 24-month sentence into 12
months custody and 12 months mandatory supervision.
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and practical construction can be given to its language.’ ” ’ ” (People v. Hall
(2017) 2 Cal.5th 494, 500-501; see also People v. Forrest (2015) 237
Cal.App.4th 1074, 1080.) “ ‘[I]n evaluating challenges based on claims of
vagueness, . . . “[t]he particular context is all important.” ’ ” (In re Oswaldo
R. (2017) 11 Cal.App.5th 409, 417; Forrest, at p. 1080 [a “probation condition
should be evaluated in its context, and only reasonable specificity is
required”].)
This court independently reviews a probation condition’s alleged
vagueness as a question of law. (People v. Forrest, supra, 237 Cal.App.4th at
p. 1080; In re K.C. (2023) 87 Cal.App.5th 921, 925; People v. Stapleton (2017)
9 Cal.App.5th 989, 993.)
II. Contentions
Bloomberg contends the word “weapon” by itself renders the challenged
probation condition vague. He argues: “The term ‘any weapon’ can
encompass a wide array of items. For example, a steak knife can be
considered a ‘weapon’ by the probation officer even if it is not being used as a
weapon. This vague term, not to own or possess ‘any weapon’ leaves open
arbitrary discretion to the policemen, judges, and probation officers and
allows for the inherent dangers available to vague probation terms.”
Bloomberg compares his condition to that in In re Kevin F. (2015) 239
Cal.App.4th 351 (overruled in part in People v. Hall, supra, 2 Cal.5th at p.
503, fn. 2), where according to him, the Court of Appeal modified a weapons
condition to read “dangerous and deadly weapons” to render the term
constitutional. He maintains that because his weapons condition “does not
sufficiently inform [him] what item he can or cannot possess,” we should
modify the condition to include the qualifier “dangerous or deadly weapon” to
pass constitutional muster.
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The People respond that the term “weapon” is sufficiently specific and
conveys a commonly understood meaning: it encompasses objects that can
function as weapons when used violently in their unintended manner, and a
reasonable person would understand the condition is not aimed at lawful
activity, but at preventing the possession or use of objects in a manner that
poses a risk of harm. They point out that the court in In re Kevin F. reached
the opposite conclusion than what Bloomberg asserts, that is, the court held
“the omission of ‘dangerous or deadly’ [did] not render the juvenile court’s
weapons prohibition unconstitutionally vague” because that qualifier
“inheres in the commonly understood meaning of the term ‘weapon’ ” and
thus was “implicit in the probation condition as phrased by the court.” (In re
Kevin F., supra, 239 Cal.App.4th at p. 360.) The People say the condition
does not require modification by this court.
III. Analysis
We hold the challenged condition is not vague and needs no
modification. In People v. Forrest, supra, 237 Cal.App.4th 1074, this court
rejected a contention that an identical probation restriction on possessing
weapons was unconstitutionally vague. (Forrest, at p. 1082.) The defendant
had argued the phrase “any instrument used as a weapon” made it “unclear
whether the phrase prohibits (1) the possession of any instrument where she
intends to use the instrument as a weapon, or (2) the possession of any
instrument which is sometimes capable of being used as a weapon.” (Ibid.)
There was no need to modify the condition, because it “is clearly directed at
prohibiting weapon possession and, when it is read in context, reasonable
persons would understand that ‘any instrument used as a weapon’ refers to
an item that is being used, or is intended to be used, as a weapon, and does
not refer to any object that might conceivably be used as a weapon. The
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phrase ‘used as a weapon’ on its face excludes objects that are merely capable
of being used as a weapon but are not actually being used as such.” (Ibid.)
Thus, “a probationer convicted of a violent crime would not be in violation of
[the weapon prohibition condition] by carrying a bat to baseball practice, but
would be in violation of that condition if he or she possessed a baseball bat in
the context being a member of a gang on the way to a gang-related
confrontation.” (Ibid.)
Bloomberg does not mention Forrest in either his opening or reply
appellate briefs. He argues the People are mistaken about the court’s
conclusion in In re Kevin F., which assertedly was that modifying the
probation condition at issue in that case “best comports with due process.”
Bloomberg reiterates his argument that a probation violation would be left to
the arbitrary discretion of a probation officer, police officer or judge given the
fact that “regular household or everyday items . . . may be considered a
weapon . . . .” He argues his requested modification will “comport with due
process . . . .”
These arguments do not convince us to disregard Forrest and its
reasoning. And In re Kevin F. supports our conclusion that Bloomberg’s
condition does not need his requested modification, even though the
challenged condition in In re Kevin F. differs from the condition here. There,
the juvenile court imposed an oral requirement that the minor was “not to
possess any weapons” and “not to possess any toys that look like weapons.”
(In re Kevin F., supra, 239 Cal.App.4th at pp. 356-357.) It also imposed a
written requirement that a minor “[n]ot possess weapons of any kind, which
means no guns, knives, clubs, brass knuckles, attack dogs, ammunition, or
something that looks like a weapon. You are not to possess anything that you
could use as a weapon or someone else might consider to be a weapon.” (Id.
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at p. 357.) Addressing the minor’s challenge that the condition was
unconstitutionally vague, the Court of Appeal rejected the argument that the
written condition had to be modified to prohibit possession of “dangerous or
deadly weapons,” concluding the written condition was “sufficiently precise
for [the minor] to know what is required of him.” (Id. at p. 359.) The In re
Kevin F. court looked back to case law setting out a test for dangerous and
deadly weapons (People v. Raleigh (1932) 128 Cal.App. 105, 107) and
explained that under it, “the notion that an instrument or object must be
either ‘dangerous or deadly’ in order to qualify as a ‘weapon’ is so
fundamental that it need not be stated explicitly. [Citation.] Because the
qualifier ‘dangerous or deadly’ inheres in the commonly understood meaning
of the term ‘weapon’ [citation], we agree with the Attorney General that it is
implicit in the probation condition as phrased by the court. Even without the
qualifier [the minor] seeks, a reasonable person can understand the plain
meaning of the term ‘weapon.’ ” (In re Kevin F, at p. 360.)
The In re Kevin F. court went on, however, to modify the prohibition on
the minor “possess[ing] anything that [he] could use as a weapon” because it
did not provide adequate notice of the prohibited conduct. (In re Kevin F.,
supra, 239 Cal.App.4th at p. 360.) It reasoned that “as worded, the condition
is broad enough to include any object that could injure someone, even an
ordinary household object, regardless of [the minor’s] intent in possessing it.”
(Ibid.) Thus, the court ordered that portion of the condition modified to
prohibit the minor “from possessing any object that he intends to use as a
weapon.” (Id. at p. 361; see also In re I.S. (2016) 6 Cal.App.5th 517, 526
[weapon-related condition held vague to the extent it prohibited possession of
“anything that can be considered by someone else to be a [dangerous or
deadly] weapon”], disapproved on other grounds by People v. Adelmann
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(2018) 4 Cal.5th 1071, 1078, fn. 10.)3 Given the breadth of the probation
condition there, In re Kevin F. is inapposite with respect to the need for these
modifications. But otherwise, In re Kevin F. supports our rejection of
Bloomberg’s vagueness challenge to use of the word “weapon” in his weapons
probation condition without the qualifier “dangerous and deadly.”
DISPOSITION
The judgment is affirmed.
O’ROURKE, Acting P. J.
WE CONCUR:
DATO, J.
BUCHANAN, J.
3 The court also modified the minor’s weapons condition to include a
scienter requirement (that the minor not “knowingly” possess weapons etc.).
(In re Kevin F., supra, 239 Cal.App.4th at p. 366.) But the court in People v.
Hall, supra, 2 Cal.5th 494 disapproved of In re Kevin F. “to the extent [it]
concluded that an express knowledge requirement was necessary to prevent
unwilling violations of possessory probation conditions . . . .” (Hall, at p. 503,
fn. 2.)
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