Opinion
E069566
11-02-2018
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND THOMAS GARCIA, Defendant and Appellant.
Dawn S. Mortazavi, 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, Arlene A. Sevidal and Craig H. Russell, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB17002663) OPINION APPEAL from the Superior Court of San Bernardino County. Richard V. Peel, Judge. Affirmed as modified. Dawn S. Mortazavi, 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, Arlene A. Sevidal and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On July 12, 2017, a felony complaint charged defendant and appellant Raymond Thomas Garcia with street terrorism under Penal Code section 186.22, subdivision (a) (count 1); and possession of a firearm by a felon under section 29800, subdivision (a)(1) (counts 2, 3, 4). The complaint also alleged that defendant had a prior strike conviction for a serious or violent felony under sections 667, subdivisions (b) through (i), and 1170.12, subdivision (a).
All further statutory references are to the Penal Code unless otherwise specified. --------
On October 18, 2017, defendant pled no contest to counts 1 and 3. The following day, the trial court sentenced defendant to three years of formal probation. The court's minute order regarding sentencing requires defendant to pay a $150 drug program fee.
On December 7, 2017, defendant filed a timely notice of appeal. Defendant requested a certificate of probable cause. On December 15, 2017, the trial court denied defendant's request.
B. FACTUAL HISTORY
On February 5, 2017, a San Bernardino police detective was investigating a murder when he encountered defendant sitting in the front passenger seat of a Ford Expedition with two other individuals. Defendant was a documented member of the West Side Verdugo Sur Crazy Ones criminal street gang; he was on formal probation. Defendant was removed from the vehicle, and a loaded revolver was found in the vehicle's cargo area.
DISCUSSION
A. THE PROBATION TERM REQUIRING PAYMENT OF A DRUG PROGRAM FEE SHOULD BE STRICKEN
Defendant contends that the probation term requiring payment for a drug program must be stricken. The People agree.
The trial court's minute order from the sentencing hearing imposed, as a condition of probation, a requirement that defendant pay a $150 drug program fee pursuant to Health and Safety Code section 11372.7. Health and Safety Code section 11372.7, subdivision (a) requires anyone convicted under chapter six of the Uniform Controlled Substance Act (UCSA), subject to certain exceptions not relevant here, to pay the $150 drug program fee. Here, defendant was not charged or convicted of an offense under the UCSA. Defendant was convicted of street terrorism and being a felon in possession of a firearm. Therefore, section 11322.7 does not apply to defendant. Moreover, the trial court orally pronounced a sentence that imposed other fees but not a drug program fee. The court, during the sentencing hearing, appeared to reference the plea agreement and stated it was imposing "all probation terms as set forth in this document." The plea agreement did not indicate that a drug program fee should be imposed.
Therefore, we agree with the parties that the probation condition imposing the drug program fee under Health and Safety Code section 11372.7 should be stricken.
B. THE PROBATION CONDITIONS PROHIBITING POSSESSION OF WEAPONS AND CONTROLLED SUBSTANCES
1. EXPRESS KNOWLEDGE REQUIREMENTS
Defendant contends that the probation conditions prohibiting him from possessing dangerous weapons and illegal drugs are unconstitutionally vague because they lack an express knowledge requirement. Defendant's claim fails because the California Supreme Court in People v. Hall (2017) 2 Cal.5th 494 (Hall) held that a knowledge requirement is implied and does not need to be expressly stated.
A challenge to the constitutionality of a mandatory supervision condition as vague is a question of law reviewed de novo. (In re Sheena K. (2007) 40 Cal.4th 875, 888.) Trial courts have broad discretion to determine what terms of mandatory supervision will promote rehabilitation and protect public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) A condition is valid if it relates to the crime for which the defendant was convicted, relates to other criminal conduct, or requires or forbids conduct that is reasonably related to future criminality. (People v. Lent (1975) 14 Cal.3d 481, 486.) "Revocation of probation typically requires proof that the probation violation was willful," and "[i]n the context of conditions barring the possession, custody, or control of firearms, illegal drugs, and related items, revocation requires knowledge." (Hall, supra, 2 Cal.5th at pp. 498-499.)
In Hall, the California Supreme Court recently considered whether probation conditions prohibiting possession of guns and illegal drugs were unconstitutionally vague because they did not include an express knowledge requirement. There, the court held that where a probationer is prohibited from possessing contraband, the knowledge requirement is implied into a condition that does not expressly provide one because a finding that the defendant had willfully violated his probation implied that he would have done so knowingly. (Hall, supra, 2 Cal.5th at p. 499.) "California case law already articulates not only a general presumption that a violation of a probation condition must be willful, but also specifically provides that probation conditions barring possession of contraband should be construed to require knowledge of its presence and its restricted nature." (Id. at p. 501.) The court went on to state that "knowledge of the contraband's presence and of its restricted nature is implicit in probation conditions restricting firearms and narcotics, regardless of any minor variations in the wording of those conditions." (Id. at p. 502.)
Therefore, based on the California Supreme Court's decision in Hall, supra, 2 Cal.5th 494, the conditions that prohibit defendant from possessing a dangerous or deadly weapon and illegal drugs are not vague even though the probation conditions do not contain express knowledge requirements because the knowledge requirement is implied. (Id. at p. 502.)
2. SELF-DEFENSE EXCEPTION
Defendant also argues that the condition restricting his possession of dangerous weapons is unconstitutionally overbroad and must be modified to allow for the use of weapons in lawful self-defense.
Self-defense is one of the "inalienable rights" secured by the California Constitution. (Cal. Const., art. I, § 1; People v. McDonnell (1917) 32 Cal.App.694, 704.) Statutorily, under Penal Code sections 197, 198, 692, 693, and 694, self-defense and defense of another are defenses to virtually any crime—even to possession of a firearm by a convicted felon. (See generally People v. King (1978) 22 Cal.3d 12, 22-23.) The right of self-defense, however, applies only in an emergency (Id. at pp. 15, 24), in the face of an imminent threat (People v. Minifie (1996) 13 Cal.4th 1055, 1064). It does not confer any right to possess a weapon indefinitely, just in case. (People v. McClindon (1980) 114 Cal.App.3d 336, 339-340.)
We have the power to construe a probation condition. We also have the power to modify a probation condition to bring it into compliance with the law. (In re Sheena K., supra, 40 Cal.4th at p. 888.) " '[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.' " (People v. Freitas (2009) 179 Cal.App.4th 747, 751, disapproved on other grounds in Hall, supra, 2 Cal.5th 494.) Thus, we will modify the probation condition to read as follows: "Neither possess nor have under your control (1) any dangerous or deadly weapons, except when such temporary possession is justified because defendant is using the weapon in accordance with the laws of self-defense; or (2) explosive devices or materials to make explosive devices."
DISPOSITION
The probation condition is modified to read as follows: "Neither possess nor have under your control (1) any dangerous or deadly weapons, except when such temporary possession is justified because defendant is using the weapon in accordance with the laws of self-defense; or (2) explosive devices or materials to make explosive devices." Additionally, the probation condition requiring the payment of the drug program fee is stricken. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. RAPHAEL
J.