Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS101688.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Pursuant to a plea agreement, defendant Raul Catalan was convicted by no contest plea of the felony of carrying a concealed firearm (Pen. Code, § 12025, subd. (a)(2)) and the misdemeanor of active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)). He also admitted that the firearm was unregistered. (Pen. Code, § 12025, subd. (b)(6).) The trial court suspended imposition of sentence for three years and imposed a number of probation conditions.
On appeal, defendant renews his objections to several probation conditions, including one prohibiting his presence at criminal court proceedings. The Attorney General concedes that the conditions require modification, but disagrees with defendant about how the courthouse condition should be modified. For the reasons stated below, we will affirm the judgment as modified to delete the word “suspect” in four conditions and to revise the courthouse condition.
The Proceedings
According to the probation report, on July 1, 2010, when Greenfield police officers responded to a report of five males tagging a wall in a city park, they found defendant hiding in some bushes. A search incident to his detention revealed an unregistered.22 caliber pistol in his front pocket. When taken to the Monterey County Jail, defendant told the staff, “ ‘I am a Norteño. I hang out with them.’ ”
Defendant told the probation officer that he was just taking a nightly constitutional and he brought the gun for protection because gang shootings were common and as recent as three days earlier. He hid when he saw the patrol vehicle because he had an illegal weapon. He is an associate of the Greenfield Tiny Locos, a Norteño gang. Two months before his arrest, he obtained a tattoo representative of a Norteño criminal lifestyle.
At the sentencing hearing on August 25, 2010, defendant objected to imposition of several of the gang conditions recommended in the written probation report, resulting in the following colloquy.
Because the trial court’s comments are helpful in framing the local circumstances the court is attempting to address, we set them forth at some length.
The court: “You’re not to be present in any area you know, suspect, or are told by the probation officer to be a gang gathering area.
“You’re 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.
“[Defense counsel]: And, Judge, as to 17, I would object that it’s vague as to ‘suspect’ and—I agree ‘told by the probation officer to be a gang gathering area, ’ but I just think
“THE COURT: Isn’t that just a suspicion too?
“[Defense counsel]: But it’s something concrete that he’s on notice, he understands, as opposed to anywhere in a gang-riddled town where he might be that any probation officer could say, [‘]You’re in a gang gathering area.[’] We’re in one now.
“I mean, it just doesn’t—it’s so vague as to, I feel, to be unfair. And I’ve seen it come up in violations where we’re arguing about how could they have known and, well, somebody there was wearing blue or somebody there was wearing red. It just applies to almost anywhere, unfortunately, in this town and I’m objecting.
“THE COURT: Well, I’m not quite sure that’s true. There are gang gathering areas and people know where they are as a rule. And you’re right, and it can move in a town from place to place. I think that’s also correct. I’m going to leave it as is. If you have reason to believe, that’s what ‘suspect’ means, that a location is a gang gathering area and it turns out that it is, then you are in violation of probation.
“It’s the same thing as buying stolen property. If you believe or suspect that an item is stolen and you buy or receive it you’re—there’s no difference there, you’re responsible for possession in receipt of stolen property. So it’s the same mental element that’s necessary in order to—and the fact of the matter is if you believe it, if you think that it’s stolen property—I’m talking about stolen property now just to make my point. If you believe that it’s stolen property and it turns out it’s not, you’re guilty of attempted receipt of stolen property.
“So if you believe that a location is a gang gathering area, or you suspect it, and it turns out it’s not, that theoretically, if there was a crime for it, could be attempted being in a place where gangs gather, which is the entire and the only—actually, the only reason why when a probation officer tells you a place is a gang gathering area and it turns out it’s not after all, you’re still in violation of probation because the probation officer told you. And that’s the same mental element that results in a person being convicted of attempted stolen property when the property is actually not stolen. It’s just that you thought it was.
“So the mental element is pretty simple, I think. It’s whether or not you suspect or believe it or are told. I think this is accurate. Not be present in any area you know, that’s actual knowledge, suspect, which is you have a reason to believe, or are told by the probation officer to be a gang gathering area. So I think that’s clear enough.”
After overruling this objection, the trial court continued. “Moving to 19. You’re not to remain in any vehicle, either as a passenger or driver, which you know or suspect to be stolen or to contain any firearms or illegal weapons.” After reciting another condition, the court stated, “You’re not to possess, wear, use, or display any item that you know, suspect, or have been told by the probation officer to be associated with membership or affiliation in a gang, including but not limited to any insignia, emblem, button, badge, cap, hat, scarf, bandanna, or any article of clothing, hand sign, or paraphernalia to include the color red.”
Defendant’s next objection was to imposition of the courthouse condition.
The court: “You shall not be present at any criminal court proceeding or loiter in or about any criminal courthouse, to include Juvenile Hall, unless you are scheduled for a court hearing, have the express permission of your probation officer, or have other lawful business with the Court or County Administration.
“[Defense counsel]: And, your Honor, I object First Amendment, Fifth Amendment as to number 23. This case has nothing to do with a court building. He wasn’t with any other alleged gang members. He was completely alone in a park. There’s just no nexus for that particular term for this case. And it unduly burdens his freedom to associate, attend public hearings, and I just don’t think it’s appropriate for him.
“THE COURT: So do you think that it would be appropriate for him to attend a trial that involves gang crimes? Just come in and sit as an observer?
“[Defense counsel]: Absolutely.
“THE COURT: And the problem with that, from the Court’s perspective, is that it is the Court’s experience, and it is the reported experience of others, that gang members come in to intimidate witnesses, and they do intimate witnesses in court proceedings.
“And so the mere presence of gang members at that kind of a hearing are [sic] a serious threat to the integrity of the court process. And this Court feels that whatever effort can be made to protect against that, to protect the integrity of the court process, should be made.
“And so unless there’s some good reason, like it’s his family member or something like that—and by ‘family, ’ I don’t mean gang family, I mean blood family—then he shouldn’t be here.
“And you can’t walk into a courtroom essentially in Monterey County, criminal court, on any day and not run into a case that involves gang allegations. It is in every courtroom, it is every day, and so the knowledge, the suspicion when someone comes to court or to the courthouse is there is going to be a gang case being called in that courtroom. It is. It’s going to happen. It is the rule. The exception is a day or a court that doesn’t have a gang case.
“And so you cannot come to the Monterey County courthouse complex in Salinas, you cannot go out to Juvenile Hall, you can’t go to King City and attend court, without 95 percent chance, or better, that there will be a gang case that’s going on in that courtroom, period.
“If it’s your family, fine, just—you know in advance, just call up the probation officer and get permission. That’s simple. Otherwise, if you have other lawful business, like your own case, it would require you to be here.
“But when you sit here and think about it in the context of Monterey County criminal courts it’s just—the reality of the environment is we deal with this every day and we deal with it at every court session. That is the reality. So the Court—he can deal with the County Administration, he can deal with the Court Administration, he can deal with any lawful court business, and if he’s got some case that he wants to attend all he has to do is clear it with the probation officer.
“And the probation officer is free to say yes or no. Even in a family case, the probation officer should exercise some discretion if it’s a serious gang prosecution to at least consider whether or not it would be appropriate.
“It would be different if the defendant wasn’t convicted of being a gang associate in possession of a firearm, maybe. Not—not—in this case it appears to be appropriate.”
The typed probation conditions in the minute order of August 25, 2010, signed and dated by the trial judge on September 14, 2010, included the following.
Neither the court’s oral recital nor the minute order numbers the probation conditions. For ease of reference, we will insert in brackets the numbers for the conditions as listed in the probation report. We do not quote conditions irrelevant to the issues on appeal.
“[17] Not be present in any area you know, suspect, or are told by the Probation Officer to be a gang-gathering area.
“[18] Not associate with any individuals you know or suspect to be gang members, drug users, or on any form of probation or parole supervision.
“[19] Not remain in any vehicle either as a passenger or driver which you know or suspect to be stolen or to contain any firearms or illegal weapons.”
“[21] Not possess, wear, use or display any item you know, suspect, or have been told by the Probation Officer to be associated with membership or affiliation in a gang, including, but not limited to, any insignia, emblem, button, badge, cap, hat, scarf, bandanna, or any article of clothing, hand sign, or paraphernalia, to include the color red/blue.”
“[23] You shall not be present at any criminal court proceeding or loiter in or around any criminal courthouse building, to include juvenile hall, unless you are scheduled for a court hearing, have the express permission of your Probation Officer, or have other lawful business with the court or county administration.”
Discussion
I. Scope of Review
An appellate court generally will not find that a trial court has abused its broad discretion to impose probation conditions so long as a challenged condition relates either generally to criminal conduct or future criminality or specifically to the probationer’s crime. (People v. Lent (1975) 15 Cal.3d 481, 486; People v. Olguin (2008) 45 Cal.4th 375, 379-380.) A court of appeal will review the reasonableness of a probation condition only if the probationer has questioned it in the trial court. (People v. Welch (1993) 5 Cal.4th 228, 237; see In re Sheena K. (2007) 40 Cal.4th 875, 882 (Sheena K.).) A court of appeal may also review the constitutionality of a probation condition, even when it has not been challenged in the trial court, if the question can be resolved as a matter of law without reference to the sentencing record. (Sheena K., supra, 40 Cal.4th at pp. 888-889.)
“Inherent in the very nature of probation is that probationers ‘do not enjoy “the absolute liberty to which every citizen is entitled.” ’ [Citations.] Just as other punishments for criminal convictions curtail an offender’s freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.” (U.S. v. Knights (2001) 534 U.S. 112, 119.) Nevertheless, probationers are not divested of all constitutional rights. “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 [constitutional] challenge on the ground of vagueness. [Citation.] A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as constitutionally overbroad.” (Sheena K., supra, 40 Cal.4th at p. 890.)
The “prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness, for ‘(i)n most English words and phrases there lurk uncertainties.’ [Citation.] Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid. [Citations.] All the Due Process Clause requires is that the law give sufficient warning that [probationers] may conduct themselves so as to avoid that which is forbidden.” (Rose v. Locke (1975) 423 U.S. 48, 49-50.)
“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.” ’ [Citation.]” (Sheena K., supra, 40 Cal.4th 875, 890, quoting People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1116-117.)
II. The Word “Suspect” Should Be Modified.
On appeal defendant renews his unsuccessful objection to the use of the word “suspect” in the probation conditions.
In the trial court, defendant objected to using “suspect” to describe a state of mind in condition 17 only, but in view of the thorough discussion before his objection was overruled, we will not require him to have repeated a futile objection each time the same wording was used in order to preserve the issue for appeal. (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033; cf. People v. Scott (1978) 21 Cal.3d 284, 291; People v. Terry (1962) 57 Cal.2d 538, 568.) The word appears in conditions 17, 18, 19, and 21.
In response to defendant’s objection, the trial court explained that “suspect” meant “reason to believe, ” though the minute order does not include this clarification.
This objection goes to what state of mind or scienter may be required to violate a probation condition. Courts are loath to subject individuals to criminal sanctions without a mental state corresponding to the prohibited conduct. As the California Supreme Court has explained: “the requirement that, for a criminal conviction, the prosecution prove some form of guilty intent, knowledge, or criminal negligence is of such long standing and so fundamental to our criminal law that penal statutes will often be construed to contain such an element despite their failure expressly to state it. ‘Generally, “ ‘[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo–American criminal jurisprudence.’...” [Citation.] In other words, there must be a union of act and wrongful intent, or criminal negligence. (Pen. Code, § 20; [citation].)’ ” (In re Jorge M. (2000) 23 Cal.4th 866, 872, quoting People v. Coria (1999) 21 Cal.4th 868, 876.)
Courts have taken a similar approach in construing and imposing probation conditions. The leading case of People v. Garcia (1993) 19 Cal.App.4th 97 (Garcia) added an express knowledge requirement to a probation condition after holding that a condition “that prohibits appellant from associating with persons who, unbeknownst to him, have criminal records or use narcotics, is ‘ “overbroad [and therefore] is not reasonably related to a compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights.” ’ ” (Id. at p. 102.) Garcia also held that the probation condition could not be saved by a narrowing judicial construction assuming the probationer’s awareness. “[T]he rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights, lead us to the conclusion that this factor should not be left to implication.” (Ibid.)
In People v. Lopez (1998) 66 Cal.App.4th 615 (Lopez), the Garcia court extended its holding to gang probation conditions that it found to be fatally overbroad (id. at p. 628) and ordered the following modifications of a probation condition, which we will underline. “Defendant is not to be involved in or associate with any personknown to defendant to be a gang member. He may not wear or possess any item of gang clothing known to be such by defendant including any gang insignia, moniker or pattern, jewelry with gang significance nor may he display any gang insignia, moniker or other markings of gang significance known to be such by defendant on his person or property as may be identified by law enforcement or the probation officer....” (Id. at pp. 638, 622.) The court explained: “Without at least the insertion in this aspect of the condition of a knowledge element, Lopez was subject to being charged with an unwitting violation of the condition because nothing in it required the police or the probation office to apprise Lopez of the ‘identified’ items of gang dress before he was charged with a violation. In this respect, then, the unmodified condition was inconsistent with the rule that a probation condition ‘must be sufficiently precise for the probationer to know what is required of him....’ ” (Id. at p. 634.)
This concern about avoiding unwitting probation violations reflects the concept embodied in Penal Code section 26, subdivision Three. “Penal Code section 26 provides that a person is incapable of committing a crime where an act is performed in ignorance or mistake of fact negating criminal intent; a crime cannot be committed by mere misfortune or accident.” (People v. Coria, supra, 21 Cal.4th 868, 876.) Imposing a knowledge requirement in a probation condition is a way of ensuring that a violation will involve not only a prohibited act, but also a wrongful, if not criminal, intent.
After Garcia and Lopez, appellate courts have modified a variety of probation conditions to include some form of explicit knowledge element. The California Supreme Court itself stated in Sheena K., “We agree with the Court of Appeal that in the absence of an express requirement of knowledge, the probation condition imposed upon defendant is unconstitutionally vague.... [It] 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.” (Sheena K., supra, 40 Cal.4th 875, 891-892.) The court noted that there were no “additional oral or written comments” by the trial court clarifying what knowledge was required. (Id. at p. 891.) The court suggested “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 probation officer or other person having authority over the minor.” (Id. at p. 892.)
Appellate courts have inserted a variety of explicit knowledge conditions (which we underline) in mostly gang-related probation conditions. (In re Justin S. (2001) 93 Cal.App.4th 811, 816 [“Do not associate with any person known to you to be a gang member and anyone disapproved of by parents/P.O.”]; People v. Turner (2007) 155 Cal.App.4th 1432, 1436 [“Not associate with persons he knows or reasonably should know to be under the age of 18 unless accompanied by a responsible adult unrelated to defendant.”]; In re Vincent G. (2008) 162 Cal.App.4th 238, 247-248 [“1. You are not to associate with any person whom you know, or whom the probation officer informs you, is a gang member.... 2. You are not to possess, wear or display any clothing or insignias, emblems, badges, or buttons that you know, or that the probation officer informs you, are evidence of affiliation with or membership in a gang; nor display any signs or gestures that you know, or that the probation officer informs you, are gang gestures; nor be at areas that you know, or that the probation officer informs you, are frequented by gang members.”]; In re Ramon M. (2009) 178 Cal.App.4th 665, 679 [“You are not to associate with known members of the Barrio Pobre gang or any other gang as directed by your probation officer.”]; People v. Leon (2010) 181 Cal.App.4th 943, 954 (Leon) [“You are not to possess, wear or display any clothing or insignia, tattoo, emblem, button, badge, cap, hat, scarf, bandanna, jacket, or other article of clothing that you know or the probation officer informs you is evidence of, affiliation with, or membership in a criminal street gang. You are not to associate with any person you knowto be or the probation officer informs you is a member of a criminal street gang. You are not to visit or remain in any specific location which you know to be or which the probation officer informs you is an area of criminal-street-gang-related activity.... You shall not be present at any court proceeding where you knowor the probation officer informs you that a member of a criminal street gang is present or that the proceeding concerns a member of a criminal street gang unless you are a party, you are a defendant in a criminal action, you are subpoenaed as a witness, or you have the prior permission of your probation officer.”]; In re Victor L. (2010) 182 Cal.App.4th 902, 931 [“The Minor shall not be a member of any gang..., nor associate with any person known by the Minor to be a gang member, or with anyone with whom the Minor knows a parent or the Probation Officer prohibits association.... The Minor shall not remain in any building, vehicle or in the presence of any person where the Minor knowsone or more dangerous or deadly weapons or firearms or ammunition exist.”]; original emphasis omitted.)
In re H. C. (2009) 175 Cal.App.4th 1067, this court questioned phrasing a probation condition in the passive voice—“That the minor not associate with any known probationer, parolee, or gang member”—because it did not clearly identify whose knowledge was required. We modified the condition to state, “You H.C. will not associate with any person known to you to be on probation, on parole or a member of a criminal street gang.” (Id. at p. 1072.)
While defendant’s opening brief invokes Garcia and its progeny Leon and In re Victor L., this case is not really about the need identified in those cases to add an express knowledge requirement. The conditions challenged here all include knowledge requirements. Two of them (18 and 19) enjoin defendant to avoid what “you know or suspect” to be prohibited situations. Two more (17 and 21) require his avoidance of locations and behaviors that “you know, suspect, ” or are told by a probation officer are prohibited. His issue, thus, is that the state of mind described by “suspect” in these conditions is vague and not sufficiently precise to inform him what is required of him.
In People v. Gabriel (2010) 189 Cal.App.4th 1070 (Gabriel), this court considered the same challenge to two Monterey County probation conditions identical to conditions 17 and 18 in the case before us. (Id. at p. 1073.) We reasoned as follows. “To ‘suspect’ is ‘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.’ (Merriam–Webster’s Collegiate Dict. (10th ed.1999) p. 1187 (Webster’s).) To ‘imagine’ is ‘to form a notion of without sufficient basis.’ (Webster’s, at p. 578.) Given this lack of specificity, the word ‘suspect’ fails to provide 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. Moreover, inclusion of this word renders the condition insufficiently precise for a court to determine whether a violation has occurred. Accordingly, this condition must also be modified to delete the word ‘suspect.’ ” (Id. at p. 1073.)
The Attorney General does not argue that the trial court in this case provided a clarifying explanation for “suspect.” In light of Gabriel, the Attorney General concedes that the word “suspect” is vague and asks us to “modify appellant’s gang-related probation conditions by removing ‘suspect.’ ” This court is not required to accept a concession of law by the Attorney General. (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1021.) We have noted above (ante, fn. 4) that the requisite scienter has been described in a number of ways which presumably all pass constitutional muster. In light of the Attorney General’s concession and for the sake of judicial economy, rather than remanding to allow the trial court to articulate an alternate scienter, we will order the conditions modified as requested.
Defendant acknowledges that he also asserts a “somewhat broader” objection to condition 18 on appeal. He argues that barring his knowing association with gang members, drug users, probationers, and parolees is overbroad, because, in the small town of Greenfield, it will be hard to avoid probationers, drug users, and Norteños. Such a condition sets him up for failure.
We regard this attempted expansion as a fact-based challenge to the reasonableness of this probation condition, which has been forfeited by defendant’s failure to assert it in the trial court.
III. The Courthouse Condition Should Be Modified.
Defendant also renews his challenge to the constitutionality of condition 23, which we repeat for ease of reference. “You shall not be present at any criminal court proceeding or loiter in or around any criminal courthouse building, to include juvenile hall, unless you are scheduled for a court hearing, have the express permission of your Probation Officer, or have other lawful business with the court or county administration.” Defendant argues that it infringes on his right to attend a jury trial and asks that the condition be stricken in its entirety. The Attorney General argues that the condition should be modified, not stricken.
NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178 extensively analyzed United States Supreme Court precedent before concluding that there is a First Amendment right of public access to court proceedings, both criminal and civil, (id. at pp. 1207-1209) and that court proceedings may be closed only in limited and specific circumstances. (Id. at pp. 1217-1218.)
In People v. Perez (2009) 176 Cal.App.4th 380 (Perez), the Second District Court of Appeal considered the constitutionality of a probation condition that prohibited the probationer from attending any court hearing or being within 500 feet of any court in which the defendant was neither a defendant nor a subpoenaed witness. (Id. at p. 383.) The court concluded that the condition imposed unnecessary restrictions on the probationer’s “right to access the courts and government offices” (id. at p. 385), so the court struck the condition and remanded the case to the trial court to “impose a narrower condition if it deems necessary.” (Id. at p. 386.)
In Leon, supra, 181 Cal.App.4th 943, one panel of this court considered a constitutional challenge to a condition that stated, “ ‘You shall not appear at any court proceeding unless you’re a party, you’re a defendant in a criminal action, subpoenaed as a witness, or with permission of probation. ’ ” (Id. at p. 952.) To limit infringement on the defendant’s First Amendment right of access to court proceedings, Leon modified the condition to provide: “You shall not be present at any court proceeding where you know or the probation officer informs you that a member of a criminal street gang is present or that the proceeding concerns a member of a criminal street gang unless you are a party, you are a defendant in a criminal action, you are subpoenaed as a witness, or you have the prior permission of your probation officer.” (Id. at p. 954.)
In In re E. O. (2010) 188 Cal.App.4th 1149 (E. O.), a different panel of this court considered the constitutionality of a condition that stated “ ‘[t]hat said minor not knowingly come within 25 feet of a Courthouse when the minor knows there are criminal or juvenile proceedings occurring which involves [sic] anyone the minor knows to be a gang member or where the minor knows a witness or victim of gang-related activity will be present, unless the minor is a party in the action or subpoenaed as a witness or needs access to the area for a legitimate purpose or has prior permission from his Probation Officer.’ ” (Id. at p. 1152.)
Even though the challenged condition was limited to criminal proceedings involving gang members, E. O. concluded that it was overbroad. (Id. at p. 1157.) The opinion noted that another unchallenged condition prohibiting gang activity would seem to serve the apparent concern of this challenged condition of preventing “intimidation by gang members of witnesses to or victims of crimes with which other gang members are charged.” (Id. at p. 1155.) Following Perez, E. O. struck the condition rather than modifying it and indicated that the trial court should hold a new hearing to reconsider the necessity and purpose of the condition if requested by either party. (Id. at pp. 1157-1158.) In a lengthy footnote, E. O. also suggested appropriate language if the trial court were to find such a restriction justified.
Footnote 5 in E. O., supra, 188 Cal.App.4th stated on page 1157: “You must not attend any gang-related case unless at least one of these things is true:
Defendant relies on E. O. in arguing that there was no showing in this case that defendant was likely to appear in a courtroom in order to intimidate jurors or witnesses. The Attorney General asserts that we “should modify appellant’s probation condition by narrowing the restriction to gang-related proceedings as suggested by the Leon court.” In this case, like E. O. and unlike Perez and Leon, the probation condition is already limited to criminal court proceedings. Unlike Leon and E. O., the appellant did object to the condition in the trial court, and due to his objection, the trial judge discussed at length the reality of witness intimidation in Monterey County courts by the mere presence of gang members and the need for a probation condition to prevent it. The judge explained that most of the criminal cases in the Monterey County courts are gang cases. By virtue of this explanation, defendant may be deemed to know that the Monterey County courts are full of criminal street gang cases.
With judicial economy in mind, instead of simply striking the condition as did Perez and E. O. to give the trial court an opportunity to reformulate it, we believe that the existing condition can be adequately tailored to balance defendant’s constitutional rights and legitimate concerns for the integrity of the judicial process as in the following paragraph.
You shall not be present at any criminal court proceeding that you know or reasonably should know involves either criminal street gang charges or a person associated with a criminal street gang (as defined in Penal Code section 186.22) as a member or witness, unless you are scheduled for a court hearing, have the express permission of your probation officer, or have other lawful business with the court or county administration.
We are mindful that this revision differs from those in Leon and E. O., but as noted above in part II, there have been a number of approved formulations of a scienter requirement. We have incorporated the one employed in People v. Turner, supra, 155 Cal.App.4th 1432 because this phrasing has already been evaluated for vagueness by the California Supreme Court, albeit in the context of a criminal statute, not a probation condition.
In In re Jorge M., supra, 23 Cal.4th 866, the court determined that proving a violation of the Assault Weapons Control Act requires 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.) The court rejected a suggestion that such an interpretation was unconstitutional. “That a criminal statute contains one or more ambiguities requiring interpretation does not make the statute unconstitutionally vague on its face [citation], nor does it imply the statute cannot, in general, be fairly applied without proving knowledge of its terms.” (Id. at p. 886.) Acknowledging that its “ ‘reasonably should have known’ formulation departs somewhat from the usual description of criminal negligence” (id. at p. 887, fn. 11), the court asserted that its formulation of the scienter element “is sufficient to protect against any significant possibility of punishing innocent possession.” (Id. at p. 886.)
We believe what a probationer reasonably should know includes oral and written information provided by a probation officer (as well as by a judge), so our modification does not spell out all the ways a probationer might gain knowledge.
Disposition
The trial court is directed to prepare a new order modifying the probation conditions we have identified as 17, 18, 19, and 21 to delete the words “suspect” and “or suspect” as appropriate and condition 23 to state: “You shall not be present at any criminal court proceeding that you know or reasonably should know involves either criminal street gang charges or a person associated with a criminal street gang (as defined in Penal Code section 186.22) as a member or witness, unless you are scheduled for a court hearing, have the express permission of your probation officer, or have other lawful business with the court or county administration.” As so modified, the judgment is affirmed.
WE CONCUR: BAMATTRE-MANOUKIAN, ACTING P.J., MIHARA, J.
“(1) You are a party to the case.
“(2) You or a member of your immediate family is a victim of the activity charged in the case.
“(3) You are there to obey a subpoena, summons, court order, or other official order to attend.
“(4) A party’s attorney has asked you to testify or to speak to the court.
“In all other cases, you must stay at least 50 feet away from the entrance to any courtroom where you know there is a gang-related case going on.
“A gang-related case is a court case that you know involves charges of gang-related activity, or other charges against a person you know or have been told by your probation officer is a member of a gang. A gang is a ‘criminal street gang’ as defined in section 186.22 of the Penal Code.
“You must not try to scare or otherwise cause anyone not to take part in a gang-related case. This includes a witness, victim, juror, or court worker. You must not try to get any witness in any court case not to testify. You must not try to get them to change their testimony.”