Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS082437
RUSHING, P.J.
I. Statement of the Case
In January 2009, defendant Mark Edwin Hurlibirt pleaded no contest to attempted grand theft of property taken from the person of another. (Pen. Code § 664, 487, subd. (c).) In March, the court suspended imposition of sentence and placed defendant on probation. In April, defendant admitted violating probation. The court revoked probation and then reinstated it with modified conditions.
All unspecified statutory references are to the Penal Code.
On appeal from the judgment and order revoking, modifying, and reinstating probation, defendant claims that four of the probation conditions are unconstitutionally vague and overbroad.
We agree, modify the conditions, and affirm the judgment as modified.
II. Facts
The facts as summarized in the probation report reveal that on September 22, 2008, Peter Perez caught defendant climbing through the window of his residence. The window blinds and a screen were bent, flower pots had been knocked over, and electronic equipment had been knocked to the floor. Defendant hit Perez in the mouth. Perez grabbed the phone, and defendant fled. Perez knew defendant, because they had been roommates until the landlord evicted defendant.
III. Probation Conditions
In reinstating probation, the court imposed various conditions, among them are the following, which defendant now challenges:
Condition number seven requires that he not “possess alcohol/narcotics, intoxicants, drugs, or other controlled substances without the prescription of a physician; [or] traffic in, or associate with persons known to defendant to use or traffic in narcotics or other controlled substances.”
Condition number 10, requires that he not “possess, receive or transport any firearm, ammunition or any deadly or dangerous weapon” and that he “[i]mmediately surrender any firearms or ammunition [he owned or possessed] to law enforcement.”
Condition number 14 requires that he “[s]tay away at least 100 yards from [the] victim, victim’s residence, vehicle and place of employment.”
Condition number 19 requires that he “[n]ot remain in any vehicle either as a passenger or driver which is known or suspected to be stolen or contain any firearms or illegal weapon.”
IV. Discussion
Defendant contends these conditions are unconstitutionally vague and overbroad because they lack an express “knowledge requirement, ” and as a result, they do not provide adequate notice of what is required, give undue discretion to law enforcement authorities, and are not narrowly tailored to avoid unnecessarily infringing on his constitutional rights. Defendant argues that these conditions must be modified to include a knowledge requirement.
Defendant acknowledges that he did not object to these conditions. (People v. Welch (1993) 5 Cal.4th 228, 237 [“failure to timely challenge a probation condition... waives the claim on appeal”].) However, he argues that he did not forfeit his claims because the conditions are facially unconstitutional. ~(AOB 7)~ The Attorney General does not argue that defendant forfeited his claims, and we agree that the failure to object does not preclude appellate review. (In re Sheena K. (2007) 40 Cal.4th 875, 885, 887 (Sheena K.) [vagueness and overbreadth claims not forfeited where it presents question of law and can be resolved without reference to record of proceedings below].)
The rules pertaining to probation conditions are well established. “Trial courts have broad discretion to set conditions of probation in order to ‘foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.’ [Citations.] If it serves these dual purposes, a probation 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.’ [Citation.]” (People v. Lopez (1998) 66 Cal.App.4th 615, 624, quoting People v. Carbajal (1995) 10 Cal.4th 1114, 1120; People v. Peck (1996) 52 Cal.App.4th 351, 362; see § 1203.1, subd. (j); Cal. Rules of Court, rule 4.410.)
However, 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.” (Sheena K., supra, 40 Cal.4th at p. 890, quoting People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325.)
In Sheena K., supra, 40 Cal.4th 875, the court held that a probation condition prohibiting association with anyone disapproved of by the probation department was unconstitutionally vague because it did not require that the minor know whether a person had been disapproved. (Id. at pp. 890-891.) The court explained that the appropriate remedy was to modify the condition to include a knowledge requirement. (Id. at p. 892.)
In In re Justin S. (2001) 93 Cal.App.4th 811, the court held that a condition that prohibited association with “ ‘any gang members’ ” was similarly defective because it did not require that the minor know whether persons he was associating with were gang members. (Id. at p. 813.) In People v. Garcia (1993) 19 Cal.App.4th 97, the court held that a condition prohibiting the probationer from associating with people who used or sold drugs was defective because it did not have a knowledge requirement concerning the persons he might associate with. (Id. at p. 102.) In People v. Leon (2010) 181 Cal.App.4th 943, this court held that a condition that prohibited the probationer from having any “insignia, tattoos, emblem, button, badge, cap, hat, scarf, bandana, jacket, or other article of clothing which is evidence of affiliation with or membership in a gang” was defective because it did not did not included a knowledge requirement. (Id at pp. 950-951.) In each of these cases, the court modified the defective condition to include a knowledge requirement. (In re Justin S., supra, 93 Cal.App.4th at p. 816; People v. Garcia, supra, 19 Cal.App.4th at p. 103; People v. Leon, supra, 181 Cal.App.4th at p. 954.)
In light of this case precedent, the Attorney General concedes that conditions seven, 10, and 14 are defective. We agree with the parties that these conditions are facially vague and must be modified to include an appropriate knowledge requirement
The Attorney General argues that condition 19 passes constitutional muster because it contains a knowledge requirement: it prohibits riding in or driving a vehicle “known or suspected” to be stolen or to contain weapons. Defendant counters that this knowledge requirement does not go far enough because he would be subject to punishment if he rode in a car that someone else, but not he, knows or suspects is stolen. We agree with defendant.
In In re H.C. (2009) 175 Cal.App.4th 1067, this court held that a condition prohibiting the minor from associating with any “ ‘known probationer, parolee, or gang member’ ” was defective because it did not necessarily require that the minor know that he was associating with prohibited person. He could be punished as long as someone knew. (Id. at p. 1071-1072.) Accordingly, we modified the condition to expressly require knowledge by the minor. (Id. at p. 1073.)
Condition 19 suffers from the same problem. Accordingly, it too is vague and must be modified.
V. Disposition
Probation Condition number seven is modified to read as follows: “Do not knowingly possess or consume alcohol or knowingly buy, sell, possess, or use illegal drugs; do not knowingly associate with anyone who buys, sells, possesses, or uses illegal drugs; do not be knowingly be in a place where illegal drugs are used or sold or where alcohol is a major item of sale.”
Probation condition number 10 is modified to read as follows: “Do not knowingly own, possess, receive, transport, or have under your control a firearm, ammunition, or any weapon you know to be deadly or dangerous; immediately surrender any firearms or ammunition that you own or knowingly possess to law enforcement authorities.”
Probation condition number 14 is modified to read as follows: “Do not knowingly come within 100 yards of the victim, the victim’s residence, and the victim’s place of employment.”
Condition number 19 is modified to read as follows: “Do not remain in any vehicle, either as a passenger or driver, which you know or suspect is stolen or know or suspect contains any firearm or illegal weapon.”
As modified, the judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.