Opinion
A145852
08-17-2018
THE PEOPLE, Plaintiff and Respondent, v. MARQUIS LAVANT WARREN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR215179)
Appellant Marquis Lavant Warren appeals an order placing him on probation after suffering convictions for receipt of a stolen vehicle and for drug possession. He argues that a "no contact" restriction in his probation conditions is unconstitutionally vague. We modify the probation condition to reflect the correct victim's name, but in all other respects affirm the challenged order.
I. BACKGROUND
Warren was convicted of drug possession and receiving a stolen vehicle and was placed on three years' probation with various conditions. At the sentencing hearing, the trial judge instructed that he is not to "annoy, harass or threaten the victim 'DL.' " "You are to have no contact with that person. [¶] I guess that was [the] owner of the car." The trial judge asked the prosecuting attorney for the full name of the victim and the prosecutor provided the name "Denise Lyons." That name was recorded as the theft victim's name and the person with whom Warren is to have no contact. The written probation order likewise states that Warren is to have no contact with "Denise Lyons." Warren offered no objection to this condition. The witness who testified at trial regarding the theft of her car, however, was named Diane Landers. For the first time on appeal, Warren now raises a challenge to his probation conditions, arguing they are unconstitutionally vague because the no-contact clause lacks an explicit knowledge requirement and fails to define "contact." Warren also argues—and the People concede—the no-contact probation clause should be modified to correct the victim's name to Diane Landers.
The written order does not reflect the trial court's ruling to "not annoy, harass or threaten" the theft victim and only provides that Warren is to have no contact with "Denise Lyons."
II. DISCUSSION
A challenge to conditions of probation on the ground they are unconstitutionally vague where the alleged defect is capable of correction without reference to the sentencing record presents a pure question of law. (In re Sheena K. (2007) 40 Cal.4th 875, 887-888 (Sheena K.).) Such a challenge is not forfeited by failure to raise an objection in the trial court and is therefore cognizable, in the discretion of an appellate court, when raised for the first time on appeal. (Id. at pp. 887-889.) Although no objection was raised in the trial court in this case, we conclude Warren did not forfeit his right to challenge the no-contact probation condition here because his claim raises a facial challenge to the constitutionality of the condition. Because his challenge may be resolved without reference to factual matter concerning how and under what circumstances the condition applies, we have discretion to address it, and we choose to address it, as a matter of law. (Sheena K., at p. 885.)
The void-for-vagueness doctrine, "which derives from the due process concept of fair warning, bars the government from enforcing a provision that 'forbids or requires the doing of an act in terms so vague' that people of 'common intelligence must necessarily guess at its meaning and differ as to its application.' " (People v. Hall (2017) 2 Cal.5th 494, 500 (Hall).) "To withstand a constitutional challenge on the ground of vagueness, a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition." (Ibid.) A court's determination of whether a probation condition is "sufficiently definite" is not exclusively limited to the condition's text—other sources of applicable law must also be considered. (Ibid.) If a probation condition's terms " ' "may be made reasonably certain by reference to other definable sources," ' " the condition is not unconstitutionally vague. (Id. at pp. 500-501, quoting People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117.) "Thus, a probation condition should not be invalidated as unconstitutionally vague ' " 'if any reasonable and practical construction can be given to its language.' " ' " (Hall, at p. 501.)
The governing case law establishes "a general presumption that a violation of a probation condition must be willful." (Hall, supra, 2 Cal.5th at p. 501 [" 'The word "willfully" . . . implies that the person knows what he is doing' "], quoting In re Trombley (1948) 31 Cal.2d 801, 807.) "[T]here is now a substantial uncontradicted body of case law establishing, as a matter of law, that a probationer cannot be punished for presence, possession, association, or other actions absent proof of scienter." (People v. Patel (2011) 196 Cal.App.4th 956, 960.) "Just as most criminal statutes—in all their variety—are generally presumed to include some form of mens rea despite their failure to articulate it expressly, so too are probation conditions generally presumed to require some form of willfulness, unless excluded ' " 'expressly or by necessary implication.' " ' " (Hall, at p. 502.) "The mere fact that a statute must be interpreted to determine the applicable mental state does not render a criminal statute—or a probation condition—unconstitutionally vague. [Citations.] So long as the requisite scienter is readily discernible, its omission from the text of the statute or probation condition poses little risk of 'trap[ping] the innocent.' " (Id. at p. 501.) A probation condition is not unconstitutionally vague for lacking an explicit knowledge requirement when the requisite scienter for the probation condition is "easily ascertainable by reference to ' "other definable sources" ' that make sufficiently clear the condition['s] scope." (Ibid.) In other words, a probation condition is not unconstitutionally vague for lacking an express knowledge requirement when such a requirement is implicit in the condition.
Here, Warren argues the no-contact provision at issue is unconstitutionally vague because it does not contain an explicit knowledge requirement and should be modified to prohibit "knowing contact" with the theft victim. (Italics added.) He argues, among other things, that the no-contact condition at issue does not accurately reflect the theft victim's name (Diane Landers), which is a point the People concede. Warren further alleges that the condition does not contain an implied knowledge requirement and thereby fails to provide adequate notice of what conduct is prohibited. Except for the wrong name thread of the argument, we are not persuaded.
This appeal is controlled by our Supreme Court's opinion last year in Hall, which issued after the completion of briefing in this appeal. In that case, the defendant challenged two conditions of his probation on the ground that each one was unconstitutionally vague for failure to include an express knowledge requirement. (Hall, supra, 2 Cal.5th at p. 498.) The probation conditions prohibited the defendant from possessing firearms or illegal drugs. (Ibid.) The court held that modification to include an express knowledge requirement is not constitutionally compelled where the requisite scienter can be reasonably inferred or easily ascertained by reference to case law, statute, or "other definable sources." (Id. at pp. 501, 503.) Noting that revocation of probation generally requires proof of a willful probation violation, our Supreme Court declined to modify the condition "to make explicit what the law already makes implicit." (Id. at pp. 498, 503.) Although probation conditions "encompass great diversity" in scope and phrasing, the requisite state of mind for such conditions remains capable of being "lawfully . . . inferred." (Id. at p. 502.) Perforce under Hall, the no-contact condition here includes an implicit scienter requirement, so it is not necessary to add an express one.
Warren incorrectly relies on Sheena K. to support his argument that the condition must be modified to prohibit "knowing contact." (Italics added.) In Sheena K., the court did not modify the probation condition to provide an express knowledge requirement for intent. (Sheena K., supra, 40 Cal.4th at p. 892.) Rather, to provide the defendant proper notice of what conduct was prohibited by her probation condition, the court held it was necessary to modify the condition to replace " 'not associate with anyone disapproved of by [a] probation [officer]' " with "not to associate with anyone 'known to be disapproved of' by a probation officer." (Id. at pp. 878, 892, italics added.) As the Hall court pointed out, the modification made in Sheena K. is markedly dissimilar from a modification to include a scienter requirement. The court explained, "It is 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, 2 Cal.5th at p. 503; Sheena K., at p. 892.) Instead, the modification in Sheena K. imposed a knowledge requirement to clarify exactly whom the defendant was not to have contact with as was constitutionally required to avoid trapping the innocent. (Sheena K., at pp. 890-892; Hall, at p. 501.) The lower court in Sheena K. reasoned that " 'because of the breadth of the probation officer's power to virtually preclude the minor's association with anyone' " the defendant must be provided advance notice of whom she must avoid. (Sheena K., at p. 890.)
Here, as in Hall, the probation condition does not pose the same risk of arbitrary or discriminatory application that the probation condition in Sheena K. did. Unlike in Sheena K. where the no-contact condition failed to sufficiently notify the defendant of whom she was not to contact, the probation condition here (as modified to include the correct name of the victim) provides sufficient notice of what conduct is prohibited—that Warren is not to have contact with his theft victim. (See Sheena K., supra, 40 Cal.4th at p. 890.) A law is unconstitutionally vague when it risks trapping the innocent by " 'allow[ing] law enforcement and the courts to apply the restriction on an " ' "ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." ' " ' " (In re Oswaldo R. (2017) 11 Cal.App.5th 409, 412-413, quoting In re Victor L. (2010) 182 Cal.App.4th 902, 910; Hall, supra, 2 Cal.5th at p. 501.)
Warren insists that the no-contact condition at issue here could be violated inadvertently because there are a number of scenarios in which his victim might be unrecognizable to him. He argues, "Since appellant does not know the complaining witness in this case, and saw her only briefly during her testimony, appellant could have accidental contact with her—e.g., in the line at the grocery store, at a public park, et cetera—without knowing who she was and without knowing he was violating the probation condition . . . her appearance could [also] change significantly; any number of alterations in a person's appearance can render her unrecognizable even to acquaintances, including hair color and style, weight gain and loss, cosmetic surgery, and Halloween costumes." We are not persuaded. First, as Hall recognized, a probation violation must be willful, unless otherwise expressly excluded. (Hall, supra, 2 Cal.5th at p. 502.) So Warren's fear of an inadvertent violation is unwarranted. Second, modification of a probation condition is not constitutionally required simply to provide " 'absolute clarity.' " (See id. at p. 503.) In Hall, the court held a desire to obtain " 'absolute clarity' " in the text of the condition itself, without relying on " 'a judicial construction,' " is insufficient to compel modification of a probation condition. (Ibid.) "[T]he question before us is not whether this degree of precision would be desirable in principle, but whether it is constitutionally compelled . . . . [T]he vagueness doctrine demands 'no more than a reasonable degree of certainty.' " (Ibid.) Here, a reasonable, objective reader would understand the phrase "have no contact" to mean that all forms of purposeful communication and physical touching are prohibited. No further definition is required.
In sum, because an express knowledge requirement is implied, and because further definitional language is unnecessary, we reject Warren's vagueness attack, except to the extent he requests correction of the victim's name.
III. DISPOSITION
We remand to the trial court to modify the no-contact probation condition to accurately reflect the theft victim's name ("Diane Landers"). In all other respects, we affirm the order.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Smith, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------