Opinion
F077018
05-05-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE DE JESUS OSUNA, Defendant and Appellant.
Kristine Koo, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF169728A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. David R. Lampe and Michael G. Bush, Judges. Kristine Koo, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Peña, Acting P.J., Meehan, J. and De Santos, J.
Judge Lampe presided at the trial and sentencing; Judge Bush presided over the discovery motion.
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Jose De Jesus Osuna (defendant) stands convicted, following a jury trial, of using a tear gas weapon under circumstances other than self-defense (Pen. Code, § 22810, subd. (g)(1); counts 1 & 3) and of possessing drug paraphernalia (Health & Saf. Code, § 11364; count 5). The jury acquitted him of making criminal threats (§ 422; count 2) and indecent exposure (§ 314, subd. 1; count 4). Imposition of sentence was suspended, and he was placed on three years' probation on various terms and conditions.
All statutory references are to the Penal Code unless otherwise stated.
On appeal, we hold: (1) Although the probation condition regarding weapon possession is not unconstitutionally vague or overbroad, modification is appropriate; (2) The clerk's sentencing minutes must be corrected; and (3) The trial court did not abuse its discretion with respect to defendant's motion for disclosure of peace officer personnel records. We will order the appropriate modification and correction, and otherwise affirm.
FACTS
On September 16, 2017, defendant verbally accosted a young man who lived next door to defendant and defendant's mother. Defendant then suddenly pulled a can from his pocket and squirted the young man with pepper spray. When the young man's parents came out of the family's residence, a further verbal altercation ensued, then defendant discharged pepper spray in the direction of the young man's father.
Bakersfield Police Officer Victoria Johns and her partner contacted defendant at a nearby school. Defendant was detained and advised of his rights. Johns located a small cannister of pepper spray in one of defendant's pants pockets and a used hypodermic syringe in another of his pockets. Defendant said the syringe was for "meth."
Defendant testified that he discharged the pepper spray in self-defense.
DISCUSSION
I
VALIDITY OF PROBATION CONDITION RE: POSSESSION OF WEAPONS
As a condition of defendant's probation, the trial court ordered that defendant "not have any weapons of any description in his possession during his period of probation Defendant now says the condition is unconstitutionally vague, because it lacks a knowledge requirement and fails adequately to specify what items are prohibited. He also says the condition is unconstitutionally overbroad, because, by requiring him to "dodge" any and all potential weapons, it limits his associations, work prospects, and right to travel. The Attorney General disputes both claims.
"A Court of Appeal may 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. [Citations.]" (People v. Pirali (2013) 217 Cal.App.4th 1341, 1345; see In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.).) "Our review of such a question is de novo. [Citation.]" (People v. Pirali, supra, at p. 1345.)
Although often raised together, challenges to probation conditions as vague and overbroad "are conceptually quite distinct. A restriction is unconstitutionally vague if it is not ' "sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated." ' [Citation.] A restriction failing this test does not give adequate notice — 'fair warning' — of the conduct proscribed. [Citations.] A restriction is unconstitutionally overbroad, on the other hand, if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' [Citations.] The essential question in an overbreadth challenge 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; see People v. Contreras (2015) 237 Cal.App.4th 868, 884.)
Defendant contends that in order to be sufficiently clear to pass constitutional muster, the probation condition must be modified to include a knowledge requirement. The Attorney General says this claim has been resolved — and rejected — by People v. Hall (2017) 2 Cal.5th 494 (Hall).
In Hall, the terms of the defendant's probation prohibited him from possessing any firearm, weapon that could be concealed on his person, or illegal drug. The defendant claimed the conditions were unconstitutionally vague on their face, because they failed to state explicitly that they applied only to knowing possession. (Hall, supra, 2 Cal.5th at p. 497.)
The California Supreme Court observed that in determining whether a probation condition is sufficiently definite to pass constitutional muster, a court must consider not only the condition's text, but also other sources of applicable law, including judicial construction of similar provisions. (Hall, supra, 2 Cal.5th at p. 500.) Thus, the high court stated, "a probation condition should not be invalidated as unconstitutionally vague ' " 'if any reasonable and practical construction can be given to its language.' " ' [Citation.]" (Id. at p. 501.)
The court noted that revocation of probation typically requires proof the probation violation was willful (Hall, supra, 2 Cal.5th at p. 498), and that "[i]n the context of conditions barring the possession, custody, or control of firearms, illegal drugs, and related items, revocation requires knowledge" (id. at p. 499). Accordingly, the court reasoned, "a probationer who has possession, custody, or control of contraband willfully violates probation where the probationer has knowledge of the contraband's presence and its restricted nature, regardless of whether the item is criminal in itself, or merely related to criminality." (Ibid.) As a result, the court concluded: "[T]he firearms and narcotics conditions are not unconstitutionally vague. 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. [Citation.] The requisite scienter for these probation conditions is thus easily ascertainable by reference to ' "other definable sources" ' that make sufficiently clear the conditions' scope. [Citation.]" (Id. at p. 501.) The court found the probation conditions were properly construed as prohibiting the defendant from knowingly possessing the specified items; hence, "[b]ecause no change to the substance of either condition would be wrought by adding the word 'knowingly,' [the court] decline[d] ... to modify those conditions simply to make explicit what the law already makes implicit." (Id. at p. 503, fn. omitted.)
Defendant says Hall is distinguishable, because (1) it concerned conditions that were more specific than the one at issue in the present case, (2) it analyzed contraband and firearm prohibitions rather than a prohibition against possessing "any weapons," and (3) the defendant in Hall never made an overbreadth challenge. In light of his reliance on Sheena K., we interpret defendant's argument to be that Hall is not dispositive because defendant's problem is not with knowledge of possession of a weapon per se, but rather with knowledge of what constitutes a forbidden weapon.
In Sheena K., the minor challenged a probation condition that she " 'not associate with anyone disapproved of by probation.' " (Sheena K., supra, 40 Cal.4th at p. 878.) The California Supreme Court "agree[d] with the Court of Appeal that in the absence of an express requirement of knowledge, the probation condition imposed upon defendant is unconstitutionally vague .... [T]he probation condition 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 .... [¶] Additionally, ... modification to impose an explicit knowledge requirement is necessary to render the condition constitutional. [Citations.]" (Id. at pp. 891-892, fn. omitted.) The high court suggested modification of form probation conditions to prohibit the probationer from associating with anyone known to be disapproved of by a probation officer or, in the case of a juvenile offender, any other person having authority over the minor. (Id. at p. 892.)
The Hall court itself distinguished Sheena K. from the situation before it, explaining: "Unlike in this case, ... the probationer in Sheena K. did not object that the condition was vague in failing to articulate the requisite scienter. [Citations.] Rather, she claimed that the category of prohibited persons was vague, in that the condition failed to specify which persons the probation officer had disapproved of. [Citation.]" (Hall, supra, 2 Cal.5th at pp. 502-503.) The high court found it "telling that this court declined to modify the condition at issue in Sheena K. by inserting a requirement that the probationer avoid knowingly associating with the specified group of persons — which is the kind of modification defendant seeks here." (Hall, supra, at p. 503.)
We agree with defendant that his challenge is more like the one made in Sheena K. than the one addressed in Hall. While Hall therefore is not dispositive, however, neither does Sheena K. mandate modification of the condition at issue in the present case in order to render it constitutional.
As defendant points out, many everyday items are potentially weapons. Nonetheless, the meaning of "weapons," as the term is used in his probation condition, can be ascertained by reference to other sources of applicable law. (See Hall, supra, 2 Cal.5th at p. 500.) The California Supreme Court has explained: "As used in section 245, subdivision (a)(1), a 'deadly weapon' is 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.' [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citation.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue. [Citations.]" (People v. Aguilera (1997) 16 Cal.4th 1023, 1028-1029.) "Because the qualifier 'dangerous or deadly' inheres in the commonly understood meaning of the term 'weapon' [citation], ... it is implicit in the probation condition as phrased by the court. Even without the qualifier ..., a reasonable person can understand the plain meaning of the term 'weapon.' " (In re Kevin F. (2015) 239 Cal.App.4th 351, 360, disapproved on another ground in Hall, supra, 2 Cal.5th at p. 503, fn. 2.)
" 'When interpreting a probation condition, we rely on "context and common sense." .... ' [Citation.] Probation terms must be 'given "the meaning[s] that would appear to a reasonable, objective reader" ' [citation], and interpreted in context and with the use of common sense. [Citation.]" (People v. Rhinehart (2018) 20 Cal.App.5th 1123, 1129.) Case law makes it clear that a "weapon" is an instrumentality that is either a weapon in the strict sense of the word or that is capable of being used as a weapon and is being possessed with intent to inflict, or threaten to inflict, great bodily injury. Because the probation condition prohibiting defendant from possessing "any weapons of any description" can be given a reasonable and practical construction, and its terms may be made reasonably certain by reference to other definable sources, it is not unconstitutionally vague. (See Hall, supra, 2 Cal.5th at p. 501.) The only reasonable reading of the condition is that it prohibits defendant from possessing any item specifically designed as a weapon, or any item not specifically designed as a weapon that defendant intends to use to inflict or threaten to inflict death or great bodily injury. (See In re R.P. (2009) 176 Cal.App.4th 562, 570.)
The existence of a body of law from which the meaning of "weapon" can be readily ascertained distinguishes the probation condition in the present case from that discussed in Sheena K. We know of no body of law or other definable sources from which a probationer could determine those persons with whom he or she was prohibited from associating because they were not approved of by the probation officer.
Although we conclude the probation condition has sufficient clarity to pass constitutional muster, we recognize defendant may not be familiar with the body of law that establishes what constitutes a weapon. Out of an abundance of caution, we will modify the condition to more explicitly reflect the applicable law, in order to ensure defendant and his probation officer(s) have no uncertainty regarding what is prohibited. As modified, the probation condition will read: "Defendant is not to have in his possession during his period of probation any instrumentality that is a deadly or dangerous weapon as a matter of law, or any instrumentality that is capable of being used as a weapon and that defendant possesses with the intent to inflict or to threaten to inflict bodily injury or death."
The modification disposes of defendant's overbreadth contention. Given the nature of and weapon used in defendant's crimes, the trial court reasonably sought to include a wide array of weapons — not merely those specifically designed as such — in its prohibition.
II
CORRECTION OF MINUTE ORDER
The probation officer recommended that as a condition of probation, defendant be prohibited, inter alia, from "be[ing] in, around or about any place known to him where any such substance [i.e., any narcotic, restricted dangerous drug, marijuana, or hallucinogenic drug] is illegally sold, supplied, stored, or is present." The trial court imposed the condition as recommended. The clerk's minutes, however, do not include the "known to him" caveat. Defendant says this error should be corrected. The Attorney General has no objection. We will order the minutes corrected accordingly. (See generally People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; In re D.H. (2016) 4 Cal.App.5th 722, 725.)
III
PITCHESS REVIEW
Prior to trial, defendant filed a motion, pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), for discovery of information contained in the personnel records of Officer Johns. Specifically, based on his disputation of Johns's account of defendant's statements, he sought evidence or complaints of (1) false statements in reports, (2) fabrication of witness testimony in reports, (3) false testimony, (4) falsification of probable cause and/or reasonable suspicion, (5) acts involving moral turpitude, and (6) any other evidence or complaints of dishonesty regarding the officer. The Bakersfield Police Department agreed to an in camera review for records of dishonesty, but otherwise opposed the motion.
The court ruled it would conduct an in camera review relative to dishonesty. At the conclusion of that hearing, the court ordered disclosure of certain materials to defense counsel, subject to a protective order, and it ordered the transcript of the in camera proceedings sealed.
Defendant now asks us to conduct an independent review of the sealed Pitchess materials to determine whether the trial court complied with the required procedures and whether all relevant material was disclosed to the defense. The Attorney General does not object.
A criminal defendant has a limited right to discovery of peace officer personnel records and records of citizen complaints against peace officer personnel that are maintained pursuant to section 832.5; with exceptions not pertinent here, such records are confidential and can only be discovered pursuant to Evidence Code sections 1043 and 1045. (§ 832.7; Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 318.) A defendant is entitled to discovery of relevant information from the confidential records upon a showing of good cause, which exists "when the defendant shows both ' "materiality" to the subject matter of the pending litigation and a "reasonable belief" that the agency has the type of information sought.' [Citation.]" (People v. Gaines (2009) 46 Cal.4th 172, 179.)
If a defendant establishes good cause, the custodian of records should bring to court all documents that are potentially relevant to the defendant's motion. (People v. Mooc (2001) 26 Cal.4th 1216, 1226.) The trial court must then review the records in camera to determine what information, if any, should be disclosed. Subject to the exceptions and limitations contained in Evidence Code section 1045, subdivisions (b) through (e), the court must disclose to the defendant such information as is relevant to the subject matter involved in the litigation. (People v. Gaines, supra, 46 Cal.4th at p. 179.) A trial court is afforded wide discretion in ruling on a motion for access to law enforcement personnel records, and we will reverse only on a showing of abuse of that discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330; People v. Samayoa (1997) 15 Cal.4th 795, 827; Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086; see Pitchess, supra, 11 Cal.3d at p. 535.)
For our purposes, the pertinent limitations are contained in subdivision (b) of Evidence Code section 1045, which excludes from disclosure "(1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought. [¶] (2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code. [¶] (3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit."
The record of the trial court's in camera examination of the officer's records is adequate for our review, and demonstrates the court followed proper procedures. (See People v. Mooc, supra, 26 Cal.4th at pp. 1228-1229.) Moreover, we have independently reviewed Johns's sealed files, which have been made part of the record on appeal but which have not been disclosed to counsel for either party. Our review "reveals no materials [that were not disclosed, but that were] so clearly pertinent to the issues raised by the Pitchess discovery motion that failure to disclose them was an abuse of Pitchess discretion. Accordingly, we conclude the trial court properly exercised its discretion" by disclosing only the information it did. (People v. Samayoa, supra, 15 Cal.4th at p. 827; see People v. Hughes, supra, 27 Cal.4th at p. 330.)
DISPOSITION
The condition of probation concerning weapon possession is modified to provide: "Defendant is not to have in his possession during his period of probation any instrumentality that is a deadly or dangerous weapon as a matter of law, or any instrumentality that is capable of being used as a weapon and that defendant possesses with the intent to inflict or to threaten to inflict bodily injury or death." As so modified, the judgment is affirmed.
The trial court is directed to cause the clerk's minutes of the January 19, 2018 sentencing hearing to be amended to reflect the foregoing modification, and to be corrected to reflect, with respect to the narcotics condition of probation, that defendant shall not "be in or around or about any place known to him where any such substance is illegally sold, supplied, stored, or is present." The trial court is further directed to cause a certified copy of the modified and corrected order to be transmitted to the probation authorities.