P. v. Lucero
Filed 9/17/08 P. v. Lucero CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. SAMUEL JESUS LUCERO, Defendant and Appellant. | E043671 (Super.Ct.No. SWF021448) OPINION |
APPEAL from the Superior Court of Riverside County. John M. Monterosso, Judge. Affirmed as modified.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
Pursuant to a plea bargain, defendant pled guilty to unlawfully driving or taking a vehicle. (Veh. Code, 10851.) In accordance with the plea bargain, the court granted defendant three years probation with the condition that he serve 90 days in jail, on weekends. Defendant contends that two conditions of his probation are unconstitutionally vague and overbroad. The People agree. We modify the disputed conditions.
FACTS
On April 1, 2007, defendant took his mothers truck without permission. (Veh. Code, 10851.)
DISCUSSION
1.
FIRST PROBATION CONDITION
Defendant contends condition No. 7 of his probation is unconstitutionally vague and overbroad. The People support defendants argument. Condition No. 7 directs defendant to [n]ot associate with any unrelated person on probation or parole. We agree that the condition is unconstitutionally overbroad because it does not include the element of knowledge.
A probation condition that imposes limitations on a persons constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
The condition requiring defendant to refrain from associating with people on parole and probation infringes on defendants constitutional right of freedom of association. (U.S. Const., 1st Amend.; see also People v. Garcia (1993) 19 Cal.App.4th 97, 102.) Consequently, the condition must be narrowly tailored. The state interest for which the condition must be narrowly tailored is defendants rehabilitation. (People v. Hackler (1993) 13 Cal.App.4th 1049, 1058.) The People concede defendant is correct that the probation condition must be modified to include a knowledge requirement, because as written the condition is not narrowly tailored to the states interest. Essentially, the states interest in defendants rehabilitation would not be served by punishing defendant for associating with people who, unbeknownst to defendant, are on probation or parole. We conclude that the probation condition must be modified to reflect that defendant must not associate with people who he knows to be probationers or parolees.
After arguing that condition No. 7 is overbroad because it does not contain a knowledge requirement, defendant goes on to contend that adding a knowledge requirement to the probation condition will not render the condition narrowly drawn because the condition will still be overbroad. Defendant argues that a requirement of his probation is that he attend domestic violence classes, and that when he attends those classes he will have to associate with other people who he knows to be probationers or parolees, which will cause him to be in violation of his probation. Defendant contends the probation condition must be further modified so that it is narrowly drawn to focus on prohibiting his association with probationers and parolees outside of a rehabilitative environment. Defendant does not cite any portion of the record in support of his assertion that he must attend domestic violence classes as a requirement of his probation. The People do not address this portion of defendants argument. We are unable to locate in the record a requirement that defendant attend domestic violence classes or any other type of rehabilitative classes or programs. Accordingly, we will not further modify this probation condition.
2.
SECOND PROBATION CONDITION
Defendant contends condition No. 6 of his probation is unconstitutionally vague and overbroad. Condition No. 6 directs defendant to [n]ot have any negative contact with [his mother]. The People support defendants contention. Both defendant and the People assert that it is unclear what is meant by negative contact. We agree that the condition is vague.
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. [Citation.] (In re Sheena K., supra, 40 Cal.4th at p. 890.)
The no negative contact condition of defendants probation is similar to an order for no negative contact, which is an order commonly used in criminal courts as a tool for protecting victims. No negative contact orders are similar to stay away orders, but are not as severe because they allow the victim and the defendant to have peaceful contact. Generally, when a court makes a no negative contact order, it informs the defendant of certain types of behavior that would cause a defendant to be found in violation of the order, for example, the defendant is not to harass, annoy, molest, threaten, injure, intimidate, attack, batter, assault, stalk, destroy the personal property of, unlawfully take the personal property of, disturb the peace of, or block the movements of the victim. We conclude that by including examples of negative contact this probation condition will be rendered constitutional by providing defendant with notice of what is required of him. Accordingly, we will modify defendants probation condition to clarify what type of behavior is included in the term negative contact.
DISPOSITION
Condition No. 7 of defendants probation is modified to read: Not associate with any unrelated person who defendant knows to be on probation or parole.
Condition No. 6 of defendants probation is modified to read: Not have any negative contact with RAQUEL S., which includes not harassing, annoying, molesting, threatening, injuring, intimidating, attacking, battering, assaulting, stalking, destroying the personal property of, unlawfully taking the personal property of, disturbing the peace of, or blocking the movements of RAQUEL S.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKinster
J.
We concur:
/s/ Hollenhorst
Acting P.J.
/s/ Gaut
J.
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