Opinion
E068256
12-09-2019
THE PEOPLE, Plaintiff and Respondent, v. JOSE FRANCISCO CERVANTES, Defendant and Appellant.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV17001239) OPINION APPEAL from the Superior Court of San Bernardino County. Stephan G. Saleson, Judge. Affirmed as modified in part, remanded with directions in part. Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Jose Francisco Cervantes beat his girlfriend during an argument. Pursuant to a plea agreement, defendant pleaded no contest to infliction of corporal injury on a cohabitant within seven years of a prior domestic violence conviction. (Pen. Code, § 273.5, subds. (a) & (f)(1).) In return, defendant was placed on formal probation for a period of three years with various terms and conditions of probation. On appeal, defendant challenges four of his probation conditions, claiming they are unconstitutionally overbroad and/or vague, unreasonable, and should be stricken or modified.
All future statutory references are to the Penal Code unless otherwise stated.
In our original opinion in this case, we agreed modification was required for some of the challenged probation conditions, but rejected defendant's remaining arguments. After we filed our opinion, the California Supreme Court decided In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), which clarified the Lent standard as applied to electronics search conditions. Following its decision, the Supreme Court transferred the matter to this court with directions to vacate our prior decision and reconsider the matter in light of Ricardo P. We subsequently vacated our prior opinion filed May 11, 2018, and allowed the parties to submit supplemental briefs.
People v. Lent (1975) 15 Cal.3d 481 (Lent).
Defendant argues (1) in view of Ricardo P. this court should strike the electronics search condition because the condition is invalid under Lent and is unconstitutionally overbroad because it impermissibly restricts his First and Fourth Amendment rights; and (2) the residential search condition, the weapons condition, and the change of residence condition are unconstitutionally vague and overbroad and should therefore be stricken or modified.
We agree, and will strike the electronics search condition without prejudice to the People seeking to reinstate such a condition on a factual showing that satisfies the standard announced in Ricardo P. Accordingly, we remand the matter for the trial court to consider, consistent with this opinion, whether to impose an electronics search condition. Because we are striking the condition on Lent/Ricardo P. grounds, we do not reach defendant's constitutional challenge relating to the electronics search condition. We also modify the residential search terms and change of residence conditions to defendant's probation. As modified, the judgment is affirmed.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the police and probation reports.
On March 18, 2017, defendant and his girlfriend of four years got into an argument. During the argument, defendant struck his girlfriend at least six times in her face and mouth and kicked her twice on her side and shoulder. As a result, defendant's girlfriend sustained a black eye, bruising on both of her arms, and scratches on her face. Defendant's girlfriend reported that defendant had injured her before in a previous domestic violence incident, resulting in her being left unconscious in a street outside of their residence. Based on the severity of the previous incident, defendant's girlfriend did not want defendant placed in custody out of fear of what he would do to her upon his release.
On March 21, 2017, a felony complaint was filed charging defendant with inflicting corporal injury on a cohabitant or girlfriend within seven years of a prior domestic violence conviction. (§ 273.5, subds. (a) & (f)(1).) Defendant's prior domestic violence conviction under section 273.5, subdivision (a), occurred on October 27, 2015, in San Bernardino County Superior Court, case No. FSB1503135. At the time of the instant case, defendant was on probation in connection with his prior domestic violence conviction.
On March 29, 2017, pursuant to a plea agreement, defendant pleaded no contest to the charge and admitted to violating probation in case No. FSB1503135. On April 27, 2017, the trial court granted defendant formal probation for a period of three years with various terms and conditions of probation, including term Nos. 008A (change of residence condition), 008F (residence search condition), 009 (weapons condition), 010B (electronics search condition). Defendant was also ordered to serve 210 days in county jail, with credit for time served, and to pay various fines and fees. During the hearing, defense counsel objected to the electronics device search condition, arguing the condition had no relationship to the offense and violated defendant's due process rights. The prosecutor responded that many domestic violence offenders use cell phones to harass, threaten, stalk, and annoy their victims, and that the electronics device search condition would allow probation to effectively monitor whether defendant was using his cell phone to contact the victim. The trial court agreed with the prosecutor, reasoning that the condition would allow probation to "properly monitor domestic violence situations."
Defendant did not object to the remaining probation conditions challenged on appeal.
On May 1, 2017, defendant filed a timely notice of appeal.
III
DISCUSSION
Defendant challenges four of his probation conditions, arguing they are unconstitutionally overbroad and/or vague and unreasonable, and should be stricken or modified.
"When an offender chooses probation, thereby avoiding incarceration, state law authorizes the sentencing court to impose conditions on such release that are 'fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and . . . for the reformation and rehabilitation of the probationer.' " (People v. Moran (2016) 1 Cal.5th 398, 402-403, quoting § 1203.1, subd. (j).) Thus, "a sentencing court has 'broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.' " (Moran, at p. 403, quoting People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) "If a probation condition serves to rehabilitate and protect public safety, the condition may 'impinge upon a constitutional right otherwise enjoyed by the probationer, who is "not entitled to the same degree of constitutional protection as other citizens." ' " (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355 (O'Neil), quoting People v. Lopez (1998) 66 Cal.App.4th 615, 624 (Lopez).)
Judicial discretion in selecting the conditions of a defendant's probation "is not unlimited." (O'Neil, supra, 165 Cal.App.4th at p. 1355.) A probation condition is unreasonable and will not be upheld if it (1) has no relationship to the crime of which the defendant was convicted, (2) relates to conduct that is not criminal, and (3) requires or forbids conduct that is not reasonably related to future criminality. (People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin); O'Neil, at p. 1355.) "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (Olguin, at p. 379.) Thus, as a general rule, "even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (Id. at p. 380.)
However, "[j]udicial discretion to set conditions of probation is further circumscribed by constitutional considerations." (O'Neil, supra, 165 Cal.App.4th at p. 1356.) Under this second level of scrutiny, if an otherwise valid condition of probation impinges on constitutional rights, the condition must be carefully tailored so as to be reasonably related to the compelling state interest in the probationer's reformation and rehabilitation. (Ibid.; People v. Bauer (1989) 211 Cal.App.3d 937, 942; In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.); In re Victor L. (2010) 182 Cal.App.4th 902, 910.) "The essential question . . . is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
Challenges to probation conditions ordinarily must be raised in the trial court or appellate review of those conditions will be deemed forfeited. (People v. Welch (1993) 5 Cal.4th 228, 234-235 (Welch) [extending the forfeiture rule to a claim that probation conditions are unreasonable, when the probationer fails to object on that ground in the trial court].) However, the forfeiture rule does not apply, and a defendant who did not object to a probation condition at sentencing may do so on appeal if the appellate claim "amount[s] to a 'facial challenge' " that challenges the condition on the ground its "phrasing or language . . . is unconstitutionally vague or overbroad" and the determination whether the condition is constitutionally defective "does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court." (Sheena K., supra, 40 Cal.4th at pp. 885, 887.) Thus, a challenge to a probation condition on the ground it is unconstitutionally overbroad or vague "that is capable of correction without reference to the particular sentencing record developed in the trial court can be said to present a pure question of law" (id. at p. 887, italics omitted), and such a challenge is reviewable on appeal even if it was not raised in the trial court (id. at p. 889). To the extent defendant raises a facial challenge to the constitutional validity of the residence reporting condition, the claim is not forfeited by defendant's failure to raise it below. (Ibid.)
"Generally, we review the court's imposition of a probation condition for an abuse of discretion." (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143, citing Carbajal, supra, 10 Cal.4th at p. 1121.) However, we independently review constitutional challenges to a probation condition. (In re Shaun R., at p. 1143.) Based on the foregoing, we address the merits of defendant's arguments post.
A. Electronics Search Condition
Defendant's electronics search condition here provided as follows: "Submit to search and seizure by a government entity of any electronic device that you are an authorized possessor of pursuant to PC 1546.1(c)(10)." Defendant argues the electronics search condition should be stricken because the condition is invalid under Lent. Specifically, he asserts the condition "permits unfettered governmental access to [defendant]'s computer, cell phone, electronic devices, and all digital media," and it is neither related to defendant's crime nor to deterring future criminality. Defendant further contends the electronics search condition is unconstitutionally overbroad because it impermissibly restricts his First and Fourth Amendment rights.
Under Lent, supra, 15 Cal.3d 481, " '[a] condition of probation will not be held invalid unless it "(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . ." [Citation.]' " (Olguin, supra, 45 Cal.4th at p. 379, quoting Lent, at p. 486.) "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (Olguin, at p. 379.)
It is undisputed that the electronics search condition relates to conduct which is not in itself criminal. The People also acknowledge that there is no indication in the record that either of defendant's domestic violence offenses involved the use of any electronic devices. The People, however, assert that "it cannot be disputed that electronic devices are a central means by which [defendant] could initiate contact with the victim, in violation of his probation [and the no-contact order]." Thus, the People originally argued—and we agreed—that the condition failed the third Lent prong because it reasonably related to future criminality by enabling defendant's probation officer to effectively supervise him. (See Olguin, supra, 45 Cal.4th at pp. 380-381 ["[a] condition of probation that enables a probation officer to supervise his or her charges effectively is . . . 'reasonably related to future criminality.' "].) However, Ricardo P. clarified the third Lent prong as it relates to electronics search conditions.
In Ricardo P., a juvenile who admitted to committing two burglaries was placed on probation subject to an electronics search condition. (Ricardo P., supra, 7 Cal.5th at pp. 1116-1117.) Although the juvenile had not used an electronic device in the charged offenses, the juvenile court justified the condition by (1) construing the juvenile's statements to his probation officer as admitting he had used marijuana in connection with the offenses, and (2) " 'find[ing] that minors typically will brag about their marijuana usage . . . by posting on the Internet, showing pictures of themselves with paraphernalia, or smoking marijuana.' " (Id. at p. 1117.) Thus, the juvenile court reasoned the ability to search the juvenile's electronic devices was " 'a very important part of being able to monitor [his] drug usage.' " (Ibid.)
The Court of Appeal concluded the electronics search condition was valid under Lent's third prong, but the Supreme Court disagreed. (Ricardo P., supra, 7 Cal.5th at p. 1119.) The high court explained that "Lent's requirement that a probation condition must be ' "reasonably related to future criminality" ' contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Id. at p. 1122.) The court found "[s]uch proportionality . . . lacking" because "nothing in the record suggests that [this juvenile] has ever used an electronic device or social media in connection with criminal conduct." (Ibid., italics added; see ibid. ["courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense"].) Therefore, the juvenile court's generalized finding that juveniles use electronic devices to brag about marijuana use was insufficient to justify the condition because "Lent's third prong requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality." (Id. at p. 1121.)
The Ricardo P. court was skeptical of the connection between the electronics search condition and the juvenile's future criminality, but even if it accepted the connection articulated by the juvenile court, it found the necessary proportionality lacking. (Ricardo P., supra, 7 Cal.5th at pp. 1120, 1122.) There was no evidence the juvenile had ever used an electronic device in connection with criminal activity and the search condition imposed a significant burden on privacy interests due to scope and magnitude of information that could be revealed. (Id. at pp. 1122-1124.) In invalidating the electronics search condition, our high court concluded it "imposes a very heavy burden on privacy with a very limited justification." (Id. at p. 1124.)
The Ricardo P. court was careful to note that its "holding does not categorically invalidate electronics search conditions. In certain cases, the probationer's offense or personal history may provide the juvenile court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality." (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129, citing People v. Appleton (2016) 245 Cal.App.4th 717, 724 [finding electronics search condition reasonable because the defendant lured victim using " 'either social media or some kind of computer software' "]; In re Malik J. (2015) 240 Cal.App.4th 896, 902 [condition allowing officers "to search a cell phone to determine whether [the defendant] is the owner" was reasonable in light of the defendant's "history of robbing people of their cell phones"]; People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1173, 1176-1177 [finding electronics search condition related to the defendant's future criminality where the defendant was convicted of making gang-related criminal threats and had previously used social media sites to promote his gang].) But, on the record before it, the Ricardo P. court found "the electronics search condition imposes a burden that is substantially disproportionate to the legitimate interests in promoting rehabilitation and public safety." (Ricardo P., at p. 1129.)
"From [Ricardo P., supra, 7 Cal.5th 1113] we glean the following guidelines for determining when an electronic[s] search condition survives the third prong of Lent . . . . First, there must be information in the record establishing a connection between the search condition and the probationer's criminal conduct or personal history—an actual connection apparent in the evidence, not one that is just abstract or hypothetical. [Citation.] But no nexus between the search condition and the [probationer]'s underlying offense is required. . . . Finally, 'the burden imposed by [the] probation condition' must be proportionate to 'the legitimate interests served by the condition.' [Citation.] Thus, ' "[a] condition of probation that enables a probation officer to supervise his or her charges effectively is . . . 'reasonably related to future criminality,' " ' only if its infringement on the probationer's liberty is not 'substantially disproportionate to the ends of reformation and rehabilitation.' " (In re Alonzo M. (2019) 40 Cal.App.5th 156, 166.)
Under Ricardo P.'s clarification of Lent's third prong, the People argue, unlike in Ricardo P., "here there is a much closer connection between the need to search [defendant's] devices and the probation officer's ability to monitor [defendant's] compliance with the no-contact order." The People further assert that "here, there is no other readily available means of ensuring that [defendant, who had twice beaten the victim,] abides by the no-contact order," and "[d]epending on the victim to report any contact from [defendant] would be unreliable, as victims of domestic violence are often unwilling to report no-contact order violations due to fear of retaliation or an emotional connection to their abuser." Therefore, the People contend "[i]n order to ensure the victim's safety and [defendant's] rehabilitation, probation must be allowed an effective means of monitoring [defendant's] compliance with the court's order prohibiting him from contacting the victim."
However, we find the electronics search condition fails the test set forth in Ricardo P. because the connection to defendant's personal history is weak and the burden imposed is disproportionate to the legitimate interests served by the condition. As stressed by the Ricardo P. court, "Lent's third prong requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality." (Ricardo P., supra, 7 Cal.5th at p. 1121.)
Here, as in Ricardo P., there is nothing in the record suggesting defendant used an electronic device or social media in connection with any crimes. It is true, as the prosecutor noted, that domestic violence offenders may use cell phones to harass, threaten, stalk, and annoy their victims. But, there is nothing in the record in this case showing that defendant engaged in electronic communications to harass, stalk, annoy, or threaten the victim. Nor is there any evidence raising a concern about defendant's future criminality vis-à-vis electronic devices. Without such evidence, we cannot conclude that a broad electronics search condition similar to the one at issue in Ricardo P. is a proportional means of deterring defendant from future criminality. (Ricardo P., supra, 7 Cal.5th at pp. 1122-1123.) Because the electronics search condition is unsustainable on the record currently before us, we must strike the condition.
The People argue that "should the court disagree with [its] position, [we] should not simply strike the condition as [defendant] suggests," but rather remand the matter to the trial court to afford it an opportunity to more narrowly tailor the condition. We disagree. As the Ricardo P. court concluded in affirming the Court of Appeal's judgment striking the electronics search condition, we strike the condition. (Ricardo P., supra, 7 Cal.5th at p. 1129.) But we do so without prejudice to the People seeking to reinstate such a condition on a proper factual showing that demonstrates "a degree of proportionality between the burden imposed by [the] probation condition and the legitimate interests served by the condition." (Ricardo P., at p. 1122.)
Therefore, we remand the matter to the trial court for further proceedings consistent with this opinion. If, on remand, a proper factual showing is made that demonstrates "a degree of proportionality between the burden imposed by [the] probation condition and the legitimate interests served by the condition" (Ricardo P., supra, 7 Cal.5th at p. 1122), the trial court is directed to impose a more tailored electronics search condition. In a concurring and dissenting opinion, Chief Justice Cantil-Sakauye agreed the electronics search condition was flawed, not because it was invalid under Lent but because it was unconstitutionally overbroad and swept too broadly relative to its rationale. For that reason, the Chief Justice agreed the matter should be remanded, but stated she would direct the court to more narrowly tailor the condition. (Ricardo P., at pp. 1129-1131, 1140 (conc. & dis. opn. of Cantil-Sakauye, C.J.).)
B. Remaining Three Conditions
Defendant contends that various words and phrases in the residential search condition, the weapons condition, and the change of residence condition are both vague and overbroad. The People agree in part and disagree in part. The People agree that to avoid vagueness, an explicit knowledge requirement may be added to the residential search condition and the change of residence condition may be modified to allow for notification within 24 hours of a move. Otherwise, the People argue the challenged conditions should be upheld as written.
At sentencing, the trial court imposed the following terms and conditions of probation:
"Permit visits and searches of places of residence by agents of the Probation Department and/or law enforcement for the purpose of ensuring compliance with the terms and conditions of probation; not do anything to interfere with this requirement, or deter officers from fulfilling this requirement, such as erecting any locked fences/gates that would deny access to probation officers, or have any animals on the premises that would reasonably deter, threaten the safety of, or interfere with officers enforcing this term." (Term No. 008F.)
We note the trial court's minute order states "place of residence," and the probation report states "places of residence."
"Neither possess nor have under your control any dangerous or deadly weapons, or explosive devices or materials to make explosive devices." (Term No. 009.)
We note the trial court's minute order of term No. 009 omits the language concerning explosive devices.
"Keep the probation officer informed of place of residence and cohabitants: give written notice to the probation officer twenty-four (24) hours prior to any changes. Prior to any move provide written authorization to the Post Office to forward mail to the new address." (Term No. 008A.)
Defendant raised no objection in the trial court with respect to the above challenged conditions. Where a claim that a probation condition is facially overbroad and violates fundamental constitutional rights is based on undisputed facts, it may be treated as a pure question of law, which is not forfeited by failure to raise it in the trial court. (Sheena K., supra, 40 Cal.4th 875, 888-889; Welch, supra, 5 Cal.4th at p. 235.) To the extent defendant's challenges raise pure questions of law, we will reach the merits of defendant's claim. We focus solely on the constitutionality of the condition, not whether it is reasonable as applied to defendant. (See Lent, supra, 15 Cal.3d at p. 486 [test for reasonableness of probation conditions].) By failing to object below, defendant has forfeited all claims except a challenge "based on the ground the condition is vague or overbroad and thus facially unconstitutional." (Sheena K., at p. 878.)
Trial courts must fashion precise supervision conditions so the probationer knows what is required. (Sheena K., supra, 40 Cal.4th at p. 890.) A condition is invalid if it is " ' " 'so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.' " ' " (People v. Quiroz (2011) 199 Cal.App.4th 1123, 1128.) Nor may a court impose overbroad supervision conditions. Where a condition impinges on a constitutional right, it must be carefully tailored and reasonably related to the compelling state interest in reformation and rehabilitation. (Ibid.; Sheena K., at p. 890.) A "court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court's order cannot be entirely open-ended." (O'Neil, supra, 165 Cal.App.4th at pp. 1358-1359 [probation condition forbidding defendant from associating with all persons designated by his probation officer was "overbroad and permit[ted] an unconstitutional infringement on defendant's right of association"].) "If a probation condition serves to rehabilitate and protect public safety, the condition may 'impinge upon a constitutional right otherwise enjoyed by the probationer, who is "not entitled to the same degree of constitutional protection as other citizens." ' " (Id. at p. 1355, quoting Lopez, supra, 66 Cal.App.4th at p. 624.)
1. Residential Search Condition
Defendant argues the residential search condition, term No. 008F, is improperly vague and overbroad as to the terms "places of residence," "interfere," and "deter," as well as the "any animals" clause. Specifically, he believes that it is unclear whether "places of residence" includes temporary places where he may stay overnight, such as the home of a parent, relative, or girlfriend he visits occasionally. Defendant also asserts that it is unclear what is meant by the words "interfere" and "deter" because it is impossible for defendant to know "everything what might deter a given officer or what might interfere with the residency search condition," such as locking doors for his own safety or inadvertently leaving a child's skateboard in the front yard that an officer might trip on. He further argues that the clause prohibiting him from having "any animals" that would "deter" and "interfere with" or "threaten the safety of" officers enforcing this term "is so vague as to lack any reasonable warning of what is prohibited." He believes that the condition unreasonably restricts his legitimate interest in ensuring the security of himself and his family, and that the ambiguous language of the condition may bring innocent conduct subject to violation.
As previously noted, "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. [Citation.]" (Sheena K., supra, 40 Cal.4th at p. 890.) "[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.]" (Sheena K., at p. 890, quoting People v. Castenada (2000) 23 Cal.4th 743, 751.)
"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.]' [Citation.] A vague law 'not only fails to provide 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.]' [Citation.] 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 at p. 890, italics omitted.)
Initially, the term "places of residence" is not vague and/or overbroad. "A probation condition should be given 'the meaning that would appear to a reasonable, objective reader.' " (Olguin, supra, 45 Cal.4th at p. 382.) A reasonable interpretation of the phrase "places of residence" makes it clear that defendant must permit searches of any place in which he resides, meaning any place where he lives "permanently" or "continuously." (See Black's Law Dict. (5th Ed.) at p. 1176 [defining "reside" as "to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one's residence or domicile"]; Black's Law Dict., supra, at p. 1176 [defining "residence" as "[p]ersonal presence at some place of abode with no present intention of definite and early removal and with purpose to remain for undetermined period, not infrequently . . . ."].) While defendant requests for the term to be changed to "domicile," such a modification would prevent a probation officer from searching multiple residences, as a defendant may have two residences, but one domicile. " 'Because residence is not truly a synonym for domicile and its meaning in a particular statute is often subject to differing interpretations [citation], it is now well established that " 'residence' is a term of varying import and its statutory meaning depends upon the context and purpose of the statute in which it is used." ' " (People v. Grays (2016) 246 Cal.App.4th 679, 686, quoting People v. McCleod (1997) 55 Cal.App.4th 1205, 1217.) Residence means living in a particular locality, but domicile means living in that locality with intent to make it a fixed and permanent home. (See Black's Law Dict., supra, at p. 1176.) "Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one's domicile." (Id. at pp. 1176-1177.) As such, a person may have two places of residence, but only one domicile, as illustrated by defendant.
"Proper supervision includes the ability to make unscheduled visits and to conduct unannounced searches of the probationer's residence. Probation officer safety during these visits and searches is essential to the effective supervision of the probationer and thus assists in preventing future criminality." (Olguin, supra, 45 Cal.4th at p. 381.) Officers must have ready access to the probationer's residence to verify the probationer's compliance and prevent future criminality such as domestic violence. Of course, locked gates and fences, and potentially dangerous animals create unreasonable obstacles to monitoring probationers. (Ibid. ["Animals can be unpredictable and potentially dangerous when faced with a stranger in their territory, and some pose a great or even life-threatening hazard to persons in these circumstances."]) While "it would be unreasonable and impractical to leave it to a probationer to decide which pets could interfere with an officer's supervisory duties, . . . it is reasonable to place the burden on a probationer to inform the probation officer which animals are present at his or her residence." (Id. at p. 382.)
However, the condition prohibiting defendant from "do[ing] anything to interfere" with the searches does not specify that defendant know that he is doing something that interferes or deters. It is vague because defendant may inadvertently do something to interfere with a search without " 'know[ing] what is required of him.' " (Sheena K., supra, 40 Cal.4th at p. 890.) For instance, as defendant illustrated, he could inadvertently deter officers from visiting and searching by locking his door when he leaves his residence or locking a gate for safety. Therefore, the condition should be modified to add a knowledge requirement, as the People concede.
As to the prohibition against having any animals that would interfere with, deter, or threaten the safety of officers, similar probation conditions have been upheld by the California Supreme Court, which has concluded there is no fundamental constitutional right to own unregulated animals. (Olguin, supra, 45 Cal.4th at p. 385, fn. 3.) Because no constitutional right is involved, an overbreadth claim cannot lie. (Sheena K., supra, 40 Cal.4th at p. 890.) Nevertheless, there is a distinction between a probation condition that requires notice to the probation officer about the presence of animals and one that prohibits "hav[ing] any animals on the premises that would reasonably deter, threaten the safety of, or interfere with, officers enforcing the term." To the extent the condition does not provide notice to defendant as to the type of animal that would be impermissible, it is vague. (Sheena K., at p. 890.) We therefore will modify the condition to instead require defendant to notify the probation officer of any animals at his residence, and to comply with the probation officer's reasonable requests concerning animals.
Accordingly, to prevent arbitrary enforcement and provide clear notice, we modify the term to include an explicit knowledge requirement. (See Sheena K., supra, 40 Cal.4th at pp. 891-892.) We modify term No. 008F as follows: Permit visits and searches of places of residence by agents of the probation department and/or law enforcement for the purpose of ensuring compliance with the terms and conditions of probation; not knowingly do anything to interfere with this requirement, or knowingly deter officers from fulfilling this requirement. Probationer shall notify the probation officer of any locked gates and fences, and provide the probation officer with the means to access probationer's residence without having probationer unlock a gate or fence (for example, by supplying the probation officer with a key to the gate or fence). Probationer shall notify the probation officer of any animals at his residence and comply with the officer's reasonable requests concerning animals.
2. Weapons Condition
Defendant also contends that the part of the condition prohibiting possession of a "dangerous or deadly weapon" is unconstitutionally vague and overbroad because it can include common items, like kitchen knives, screwdrivers, razors, hammers, baseball bats, or garden tools, that could be used to inflict serious injury on another. He believes the condition should be modified to state "objects designed for primary use as or objects intended to be used as" dangerous and deadly weapons. We disagree.
In determining whether a condition of probation is sufficiently definite, a court is not limited to the condition's text. (People v. Hall (2017) 2 Cal.5th 494, 500 (Hall), citing Lopez, supra, 66 Cal.App.4th at pp. 630-632.) "We must also consider other sources of applicable law [citation], including judicial construction of similar provisions." (Hall, at p. 500.)
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. (People v. Kim (2011) 193 Cal.App.4th 836, 843 (Kim).) Section 29800 prohibits persons convicted of felonies from possessing firearms. As a probation condition that implements that statute, the condition precluding possession of a firearm should be given the same interpretation, even if the condition does not incorporate the statute by reference. (People v. Rodriguez (2013) 222 Cal.App.4th 578, 591 (Rodriguez), overturned on a different ground in Hall, supra, 2 Cal.5th at p. 503, fn. 2.)
In Hall, supra, 2 Cal.5th at p. 494, the California Supreme Court disapproved of cases holding that an express knowledge requirement was necessary to prevent unwitting violations of possessory probation conditions. (Id. at p. 503, fn. 2, disapproving of In re Kevin F. (2015) 239 Cal.App.4th 351, 361-366 & People v. Freitas (2009) 179 Cal.App.4th 747, 751-752.) The court also disapproved of cases holding that possessory probation conditions must include an express knowledge requirement where the prohibited item was not criminalized by statute but was merely related to criminality. (Hall, at p. 503, fn. 2, disapproving In re Ana C. (2016) 2 Cal.App.5th 333, 347-350 and Rodriguez, supra, 222 Cal.App.4th at p. 594.) That holding informs our reasoning and compels the result that no express knowledge element is required.
Defendant attempts to distinguish Hall, arguing "the issue here is not the Hall issue of whether [defendant] needs knowing possession of such items to be found in violation of this condition" but specificity on what items constitute "dangerous and deadly weapon." We disagree. Hall's discussion of how the Supreme Court has interpreted criminal statutes—relying solely on the presumption that scienter is required to reject vagueness challenges based on the lack of an explicit mens rea element—demonstrates that the specific case law applicable to possession probation conditions was not dispositive to the court's analysis. Moreover, merely because a condition could have been drafted with more precision does not make it unconstitutional. (Hall, supra, 2 Cal.5th at p. 503 ["[T]he question before us is not whether this degree of precision would be desirable in principle, but whether it is constitutionally compelled."].)
As noted in People v. Moore (2012) 211 Cal.App.4th 1179, 1186 (Moore), a court may not revoke a defendant's probation absent a finding that the defendant willfully violated the terms and conditions of his or her probation. (See People v. Patel (2011) 196 Cal.App.4th 956, 960 [noting the well-settled rule that a probationer cannot be punished for presence, possession, or association without proof of knowledge]; Kim, supra, 193 Cal.App.4th at p. 846 [knowledge is an implicit element in the concept of possession].) The unwitting possession of contraband does not sufficiently establish backsliding by a probationer, nor does it sufficiently threaten public safety, to merit revocation without proof of the probationer's state of mind to show the violation as willful. (Hall, supra, 2 Cal.5th at pp. 498, 500, 503, fn. 2.)
Here, term No. 009 prohibited possession of deadly or dangerous weapons. Defendant's concern that he is unable to discern what conduct is prohibited and might accidentally possess an item prohibited by the probation condition is obviated by the fact he is prohibited by statute from possessing certain weapons, namely firearms (§ 29800, subd. (a)(1)) and the fact that only willful violations of probation can result in revocation. As for dangerous or deadly weapons not expressly prohibited by statute, case law has made clear that knowledge of the contraband's presence and of its restricted nature is implicit in probation conditions restricting possession thereof. (Moore, supra, 211 Cal.App.4th at p. 1186.) Due process does not require an explicit scienter requirement when scienter is implicit. (Id. at p. 1187.)
As the court reasoned in Moore, supra, 211 Cal.App.4th at p. 1186, citing In re R.P. (2009) 176 Cal.App.4th 562, 567-568, the term "dangerous or deadly weapon" has a plain, commonsense meaning prohibiting possession of items specifically designed as weapons and other items not specifically designed as weapons that the probationer intended to use as such. It is unnecessary to define "dangerous or deadly weapon" or to add a knowledge requirement to prevent unwitting violations of probation where that probation cannot be revoked for innocent possession. (People v. Contreras (2015) 237 Cal.App.4th 868, 887 ["it is unnecessary to add a knowledge requirement to prevent unwitting violations of the condition"]; Moore, at p. 1188 ["addition of an express knowledge requirement would add little or nothing to the probation condition"].)
We find that term No. 009 is "sufficiently precise" for defendant to know what is required of him and not unconstitutionally vague and overbroad. (Moore, supra, 211 Cal.App.4th at p. 1186.)
3. Change in Residence Condition
Defendant contends that the requirement for him to give 24 hours' advance notice of his and his cohabitants' change in residence, without a requirement that he know of the change in advance, is both unconstitutionally vague and overbroad because it requires him to give notice of events he may not know are about to happen, such as "homelessness, instability, and unpredictable housing arrangements," which are a "fact of life, especially for many convicts, probationers, and parolees." He also believes the condition unduly infringes on his constitutional right to travel and relocate, and he requests modification of the condition.
As to the vagueness claim, the People concede, and we agree, that the condition should be modified. Specifically, the condition is unconstitutionally vague because if defendant's cohabitant moves without telling him 24 hours ahead of time, or if he is forced to move due to an emergency, defendant would not " 'know what is required of him' " at the time that the condition requires him to submit written notice. (Sheena K., supra, 40 Cal.4th at p. 890.) Accordingly, we direct that the condition be modified to include a knowledge requirement.
Defendant also argues the post office provision, which requires him to "provide written authorization to the post office to forward mail to the new address" prior to any move, is vague and overbroad and "susceptible to arbitrary and unfair enforcement" as he could be in violation of probation "without doing anything wrong." According to defendant, "[i]t is not a stretch of the imagination that the Post Office may fail to properly record a change of address request or may fail to properly forward mail pursuant to such a request." Out of an abundance of caution, we will modify this provision as well to include a knowledge requirement.
IV
DISPOSITION
Probation condition No. 008A (change of residence condition) is modified to read: Keep the probation officer informed of the place of residence and cohabitants and give written notice to the probation officer twenty-four (24) hours before any move or change in cohabitants and address, or as soon as he reasonably becomes aware of a move or change in cohabitants or address, but no later than 24 hours after the move or change in cohabitants or address. Provide written authorization to the Post Office to forward mail to the new address twenty-four (24) hours before any move or change in address, or as soon as he reasonably becomes aware of a move or change in address, but no later than 24 hours after the move or change in address.
Probation condition No. 008F (residence search condition) is modified to read: Permit visits and searches of places of residence by agents of the Probation Department and/or law enforcement for the purpose of ensuring compliance with the terms and conditions of probation; not to do anything to knowingly interfere with this requirement, or to knowingly deter officers from fulfilling this requirement. Probationer shall notify the probation officer of any locked gates and fences and provide the probation officer with the means to access probationer's residence without having probationer unlock a gate or fence. Probationer shall notify the probation officer of any animals at his residence and comply with the officer's reasonable requests concerning animals.
Probation condition No. 010B (electronics search condition) is stricken. The case is remanded for the court to consider, consistent with this opinion, whether to adopt an electronics search condition.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: SLOUGH
J. FIELDS
J.