Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS091069A.
BAMATTRE-MANOUKIAN, Acting P.J.
Defendant Vincent Bruce Hagenbuch pleaded no contest to two counts of perjury. (Pen. Code, § 118.) The trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions. On appeal, defendant contends that two of the conditions of probation, that defendant “stay out of places where [alcohol is] the main item of sale, ” and “not... associate with persons who use or traffic in narcotics or other controlled substances, ” are unconstitutionally vague and overbroad. For the reasons stated below, we will modify the terms to narrowly tailor them and affirm the judgment as so modified.
BACKGROUND
Defendant was convicted in 1999 of violating Vehicle Code section 23152, subdivision (b) [driving with a blood alcohol level of.08 percent or more] and placed on probation for five years. In 2001, he was convicted of violating section 23152, subdivision (a) [driving under the influence of alcohol or drugs]. His probation was revoked and reinstated. His driver’s license was suspended on June 26, 2001, when he failed to complete an ordered drunk driving program and to secure the required insurance.
Further statutory references are to the Vehicle Code unless otherwise specified.
On February 28, 2002, defendant applied for a California ID card using the name Vincent Bruce Taddeo. Between April 23, 2002, and June 18, 2007, he submitted five applications to the Department of Motor Vehicles (DMV) on which he claimed, under the penalty of perjury, that he had never had his driver’s privilege suspended and that he had never applied for a driver’s license using a different name.
On December 4, 2008, defendant told investigators that his birth certificate shows Hagenbuch as his last name, but he used his stepfather’s last name, Taddeo, through school and while he was in the military. In 1991, defendant learned that his biological father, who he thought was deceased, was in fact alive, so he began using the name Hagenbuch. Defendant also told the investigators that he knew that he had two drunk driving offenses and that his driver’s license was later suspended. He admitted that he applied for and received a California driver’s license in 2002 under the name of Vincent Bruce Taddeo, and that he had renewed the license in 2007, knowing that his license under the name of Hagenbuch was suspended.
Defendant was charged by information with six counts of perjury in applying for a California ID card or driver’s license. (Pen. Code, § 118.) On January 7, 2010, defendant signed a waiver of rights form and entered a plea of no contest to two of the six counts, on condition that he be placed on felony probation. The probation officer reported that defendant, in addition to the two prior convictions for violating section 23152, had two prior convictions for violating section 14601.2 [driving with a license suspended for driving under the influence], and he had charges pending for violating Health and Safety Code section 11550 [being under the influence of a controlled substance].
On May 7, 2010, the court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions. As relevant to this appeal, the conditions of probation included that defendant “[t]otally abstain from the use of alcohol; not purchase or possess alcohol; stay out of places where it’s the main item of sale; not use or possess alcohol, narcotic[] drugs, or other controlled substances without the prescription of a physician; not traffic in or associate with persons who use or traffic in narcotics or other controlled substances; submit to alcohol or narcotics testing and field sobriety testing when requested to do so by any peace officer or probation officer.”
DISCUSSION
“In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121; People v. Leon (2010) 181 Cal.App.4th 943, 948 (Leon).) Reasonable probation conditions may infringe upon constitutional rights provided they are narrowly tailored to achieve those legitimate purposes. (People v. Olguin (2008) 45 Cal.4th 375, 384 (Olguin); In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) “[P]robation is a privilege and not a right” (Olguin, at p. 384), and “[i]nherent in the very nature of probation is that probationers ‘do not enjoy “the absolute liberty to which every citizen is entitled.” ’ ” (U.S. v. Knights (2001) 534 U.S. 112, 119; Griffin v. Wisconsin (1987) 483 U.S. 868, 874.)
“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 unconstitutionally overbroad.” (Sheena K., supra, 40 Cal.4th at p. 890; Leon, supra, 181 Cal.App.4th at pp. 948-949.) In addition, “[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.” (Sheena K., at p. 890; People v. Freitas (2009) 179 Cal.App.4th 747, 750 (Freitas); Leon, supra, 181 Cal.App.4th at p. 949.) “[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.’ ” (Sheena K., at p. 890.)
In order to be sufficiently precise for the probationer to know what is required of him or her, a requirement of knowledge should be included in probation conditions prohibiting the possession of specified items. (Freitas, supra, 179 Cal.App.4th at pp. 751-752; see also People v. Garcia (1993) 19 Cal.App.4th 97, 102 (Garcia) [the knowledge factor in probation conditions “should not be left to implication”].) “The law has no legitimate interest in punishing an innocent citizen who has no knowledge of the presence of [the prohibited items].” (Freitas, supra, 179 Cal.App.4th at p. 752.)
A defendant may, for the first time on appeal, attack probation conditions on the limited ground that they are unconstitutionally vague or overbroad on their face. (Sheena K., supra, 40 Cal.4th at pp. 887-888.) A successful challenge on the ground of facial vagueness or overbreadth may be remediable on appeal by modification of the probation condition. (Id. at p. 888.)
Stay Out of Places Where Alcohol is the Main Item of Sale
Defendant contends that the probation condition that he stay out of places where alcohol is the main item of sale is both vague and overbroad. “The adjective ‘main’ describing the items for sale in the establishment is entirely subjective. Though it would be unreasonable to interpret it as referring to something less than 50% of the store’s sales, that leaves a wide field for divergence of view, placing [defendant] at an unconstitutional disadvantage in attempting to correlate his behavior with the requirements of his probation.” Likewise, “a total ban on such a broad category of businesses at all times and for any purpose casts too wide a net, impairing lawful conduct without furthering ‘reformation and rehabilitation of the probationer’ which is the purpose of California’s probation statute.” “ ‘Many perfectly legal activities are covered by this condition which have no relationship whatsoever to’ [defendant’s] potential to abuse alcohol.”
The Attorney General contends that, once the condition is modified to state that defendant must stay out of places where he knows alcohol is the main item of sale, the condition is neither vague nor overbroad. “The meaning of [the] condition would be apparent to a reasonable and objective reader.” “The condition... does not prevent [defendant] from traveling anywhere, or from associating with whomever he pleases, wherever he pleases, except in places where alcohol is the main item of sale. Under this condition [he] may be present in the myriad locations where alcohol sales occur incidental to other activities, while he is only barred from locations he knows are dedicated chiefly to the sale of alcohol (e.g., bars, liquor stores).”
We agree with the Attorney General. We believe that the probation condition, modified as recommended by the Attorney General, is “ ‘sufficiently precise for the probationer to know what is required of him.’ ” (Leon, supra, 181 Cal.App.4th at p. 949.) The condition is reasonably interpreted to refer only to establishments such as bars, taverns, and liquor stores, where alcohol is the main item of sale. We also believe that the condition is “closely tailor[ed]... to the purpose of the condition [so as] to avoid being... unconstitutionally overbroad.” (Id. at pp. 948-949.) Accordingly, we will order the condition modified to state that defendant must “stay out of places where he knows alcohol is the main item of sale.”
Not Associate with Persons Who Use or Traffic in Controlled Substances
Defendant also contends that the probation condition that he not traffic in or associate with persons who use or traffic in narcotics or other controlled substances is both unconstitutionally vague and overbroad. He argues that the condition “is unconstitutionally vague because it lacks a scienter element.” He further argues that the condition “unconstitutionally limits his right to associate with those[] who are not currently, at the time of association, engaged in illegal conduct.”
The Attorney General agrees that the condition should be modified to read that defendant may not traffic in or “knowingly associate with persons who unlawfully use or traffic in narcotics or other controlled substances.” The Attorney General contends that, as so modified, the condition is neither vague nor overbroad.
In Garcia, supra, 19 Cal.App.4th 97, the Court of Appeal limited a probation condition that prohibited the defendant from associating with certain groups of persons (drug users and sellers and felons) because the condition did not require that the defendant have knowledge of the status of these persons. The court modified the condition to prohibit knowing association with those persons. (Id. at pp. 102-103.) This modification was made because the condition was not “sufficiently narrowly drawn.” (Id. at p. 102.) Similarly, in People v. Lopez (1998) 66 Cal.App.4th 615 (Lopez), the Court of Appeal, relying on Garcia, concluded that a condition which prohibited the defendant from “associating with persons not known to him to be gang members” was overbroad and modified the condition to prohibit association with known gang members. (Lopez, at pp. 628-629.) In Leon, this court, relying on Garcia and Lopez, concluded that a condition which prohibited the defendant from associating with gang members was defective and modified the condition to prohibit association with any person the defendant knew to be or the probation officer informed him is a gang member. (Leon, supra, 181 Cal.App.4th at pp. 949-950.)
In the absence of a knowledge requirement, probation conditions of the type at issue here are not narrowly tailored. The associational prohibition with regard to people who use or traffic in narcotics or other controlled substances must require that defendant be aware of the unlawful status or narcotic activities of the associate. Such probation conditions are necessary to tailor the conditions to serve defendant’s reformation and rehabilitation. If he does not know whom to avoid, he will not be able to comply with the condition and will be in danger of unknowingly violating it. And, contrary to defendant’s contention, a ban on associating with known illegal drug users and traffickers even while they are not in the act of using or trafficking can foster his rehabilitation and protect public safety. Accordingly, we will order the condition modified to state that defendant “not traffic in or associate with persons who he knows or the probation officer informs him unlawfully use or traffic in narcotics or other controlled substances.”
DISPOSITION
The judgment (order granting probation) is ordered modified as follows. The probation condition that defendant “stay out of places where it’s the main item of sale” is modified to state that defendant must “stay out of places where he knows that alcohol is the main item of sale.” The probation condition that defendant “not traffic in or associate with persons who use or traffic in narcotics or other controlled substances, ” is modified to state that defendant must “not traffic in or associate with persons who he knows or the probation officer informs him unlawfully use or traffic in narcotics or other controlled substances.” As so modified, the judgment is affirmed.
WE CONCUR: MIHARA, J., DUFFY, J.