P. v. Navaei

Filed 1/19/10 P. v. Navaei CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County, John P. Doyle, Judge. Affirmed as modified.

Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.

___________________

A jury convicted Hossein Navaei of preparing a fraudulent document to obtain workers compensation benefits and attempting to commit perjury. The court stayed imposition of sentence and placed Navaei on five years of formal probation on certain conditions, including that he serve 120 days in county jail. On appeal Navaei contends several conditions of his probation as reflected in the courts minute order are unconstitutionally vague and overbroad, do not relate to the offenses for which he was convicted and do not conform to the courts oral pronouncements. We modify the conditions of probation to comport with the courts oral pronouncements at sentencing and to include expressly a knowledge requirement contained implicitly in the conditions, and, as modified, affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Navaei, a hotel night clerk, was charged with preparing a fraudulent document to obtain workers compensation insurance benefits (Ins. Code, 1871.4, subd. (a)(1)) and attempting to commit perjury (Pen. Code, 664, 118, subd. (a)). According to the evidence at trial, Navaei filed a workers compensation complaint alleging he had suffered injuries when his supervisor and his supervisors son (also an employee) attacked him during an argument about payment of wages. Navaei testified to the physical attack under oath during a deposition in his workers compensation case.^[1] At trial in the instant case, the People played a videotape from the security cameras taken on the night of the alleged attack. The videotape showed a verbal altercation between Navaei and his employer but no physical attack.

The jury convicted Navaei on both counts. The court stayed imposition of sentence and placed Navaei on five years of formal probation on the condition he serve 120 days in county jail (less two days credit). The court also imposed the following conditions, among others: (1) Do not use or possess any narcotics, dangerous or restricted drugs or associated paraphernalia, except with a valid prescription; stay away from places where users, buyers or sellers congregate; (2) Do not associate with persons known to you to be narcotic or drug users or sellers; and (3) Do not associate with his former employers, Rita Patel and Shubash Patel, or their son, Chirag Dayal. Navaei did not object to any of these conditions.

DISCUSSION

1. Navaei Has Forfeited His Challenge That the Probation Conditions Have No Relationship to the Crime for Which He Was Convicted

Navaei contends the conditions prohibiting him from possessing weapons and drugs and associating with drug users and drug dealers bear no reasonable relationship to the offenses for which he was convicted. (See People v. Lent (1975) 15 Cal.3d 481, 486 [although trial court has broad discretion in imposing conditions of probation, that discretion is not unlimited; probation condition must bear some relationship to crime for which offender was convicted]; accord, People v. Welch (1993) 5 Cal.4th 228, 233.) However, Navaei did not object to the probation conditions at his sentencing hearing. Accordingly, he has forfeited his reasonableness claim on appeal. (Welch, at p. 233 [failure to timely challenge reasonableness of a probation condition in trial court results in forfeiture of claim on appeal]; accord, In re Sheena K. (2007) 40 Cal.4th 875, 882.)

2. Navaei Has Not Shown His Counsel Was Constitutionally Ineffective

Navaei alternatively contends his counsels failure to object to the probation conditions constitutes ineffective assistance of counsel. To prevail on this claim, Gonzalez must establish his counsels representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsels deficient performance, a more favorable result would have been achieved. (Strickland v. Washington (1984) 466 U.S. 668, 686-687 [104 S.Ct. 2052, 80 L.Ed.2d 674]; People v. Williams (1997) 16 Cal.4th 153, 215.) On direct appeal a judgment will be reversed for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsels challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442; see People v. Mitcham (1992) 1 Cal.4th 1027, 1058 [[i]f the record sheds no light on why counsel acted or failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, [citation], the contention [that counsel provided ineffective assistance] must be rejected]; People v. Lewis (2001) 25 Cal.4th 610, 678 [rarely will the failure to object establish incompetence of counsel, because the decision whether to raise an objection is inherently tactical].)

This is not a case where the record provides no plausible explanation for counsels failure to object. The prosecutor had recommended Navaei serve one year in county jail, and the transcript of the sentencing hearing suggests the court was seriously considering that length of time as a probation condition (although the court expressed some concern whether such a sentence would actually be served because of jail overcrowding). Once the court decided to impose only 120 days in jail as a probation condition, defense counsel may well have decided not to object to the other probation conditions (which are not unreasonable on their face) to avoid the risk the court might change its mind on the length of Navaeis jail term. At the very least, we are not in a position to conclude Navaeis counsel was constitutionally ineffective in not raising these objections. (See People v. Mitcham, supra, 1 Cal.4th 1058; People v. Lucas, supra, 12 Cal.4th at p. 442.)

3. The Unconstitutionally Vague Probation Conditions Are Subject to Modification Even Without Objection in the Trial Court

Navaei also challenges the probation conditions relating to drug and weapons possession on the ground they are unconstitutionally vague on their face. Although Navaei failed to object to the conditions in the trial court, we may consider this facial, constitutional challenge because it presents purely a question of law. (In re Sheena K., supra, 40 Cal.4th at p. 888 [it does not appear legally imperative, practical or wise to extend the forfeiture rule of Welch to defendants [facial] constitutional challenge that presents purely a question of law].) Accordingly, we review Navaeis facial constitutional challenge to the probation conditions de novo. (Id. at p. 889 [when challenge to probation condition is grounded in the constitutionality of the condition on its face, question is one of law subject to de novo review].)

A probation condition is unconstitutional when its terms are so vague people of common intelligence must guess at its meaning. (In re Sheena K., supra, 40 Cal.4th at p. 890; accord, In re R.P. (2009) 176 Cal.App.4th 562, 566.) To survive a constitutional challenge on vagueness grounds, 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. (In re Sheena K, at p. 890.)

a. The stay away probation condition, as modified, is constitutional

Navaei contends, and the People concede, the condition requiring Navaei to stay away from places where users, buyers or sellers congregate is unconstitutionally vague because it does not refer to users, buyers or sellers of drugs. Even if that probation condition could be interpreted, based on the sentence preceding it, to refer to users, buyers, or sellers of drugs, however, it is still vague and overbroad because Navaei may not know or recognize locations where users, buyers or sellers of drugs congregate. Navaei also argues the condition is overbroad because it is not restricted to those places where drugs are illegally bought and sold and would include legal dispensaries such as pharmacies. We agree and modify the condition to provide that Navaei must stay away from places he knows users, buyers or sellers of illegal drugs congregate. (See In re Sheena K., supra, 40 Cal.4th at p. 892 [condition of probation modified by appellate court to provide that defendant is not to associate with persons he knows to be users or sellers of narcotics, felons, or ex-felons (italics added)]; People v. Lopez (1998) 66 Cal.App.4th 615, 624, fn. 5 [condition of probation modified by appellate court to prohibit defendant from associating with any person known to defendant to be a gang member (italics added)].)

b. The condition prohibiting Navaei from possessing a dangerous or deadly weapon is not unconstitutionally vague or overbroad

Navaei also argues the probation condition prohibiting him from owning, using or possessing any dangerous or deadly weapon is unconstitutionally vague and overbroad because the condition would prohibit him from possessing such ordinary household items as a kitchen knife.

The same argument was recently considered and rejected by our colleagues in Division Three of this court. (See In re R.P., supra, 176 Cal.App.4th 562.) The court observed that deadly weapon is uniformly defined in statute (see Pen. Code, 245, subd. (a)(1)), case law (see People v. Aguilar (1997) 16 Cal.4th 1023, 1027) and jury instructions (CALCRIM Nos. 875, 2503, 3130) as an object or instrument used in a manner likely to produce great bodily injury. (In re R.P., at p. 567.) The definition encompasses items that are dangerous per se, such as dirks and blackjacks, which are specifically designed as weapons and thus considered deadly weapons as a matter of law (Aguilar, at p. 1029), as well as other items that are not deadly per se, but which may be used in a manner likely to cause death or great bodily injury. (In re R.P.,at p. 567.) In cases involving objects that are not designed solely to be used as weapons, the relevant inquiry is whether the object was intended to be used in a deadly or dangerous manner. (Ibid., citing Aguilar, at p. 1023 and People v. Page (2004) 123 Cal.App.4th 1466, 1471.) Based on these well-established definitions, we adopt the reasoning of our Division Three colleagues and hold the probation condition is sufficiently precise for [Navaei] to know what is required of him. (In re R.P., at p. 565.)

4. The Minute Order Is Corrected To Comport with the Courts Oral Pronouncements

The minute order from the sentencing hearing includes a condition of probation providing, If you leave the country, you shall not reenter the United States illegally. If you do return, report to the probation officer within three (3) days, and present documentation which provides you are in the [United States] legally. The trial court did not orally pronounce this condition of probation at sentencing. Accordingly, we modify the minute order to strike that condition of probation. (People v. Mitchell (2001) 26 Cal.4th 181, 183, 185-188 [where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the courts oral pronouncement controls]; accord, People v. Zackery (2007) 147 Cal.App.4th 380, 386.)

The minute order also inaccurately reflects the courts oral pronouncements concerning the condition prohibiting Navaei from associating with illegal drug users. At the sentencing hearing the court imposed as a condition of probation the requirement that Navaei not associate with persons known by you to be narcotic drug users or sellers. The minute order, however, omits the knowledge requirement from this condition. Accordingly, we modify the minute order to accurately reflect the courts oral pronouncements (People v. Mitchell, supra, 26 Cal.4th at p. 185), as well as to clarify the trial courts intent that the condition refer to users and sellers of illegal drugs (In re Sheena K., supra, 40 Cal.4th at p. 892).

DISPOSITION

The judgment, as reflected in the August 21, 2008 minute order, is modified as follows: (1) The probation condition ordering Navaei to stay away from places where users, buyers or sellers congregate is modified to read, Stay away from places where you know users, buyers or sellers of illegal drugs congregate; (2) the condition relating to leaving in the country is stricken in its entirety; (3) the condition prohibiting Navaei from associating with drug users or sellers is modified to read, Do not associate with persons known by you to be illegal drug users or sellers. As modified, the judgment is affirmed.

PERLUSS, P. J.

We concur:

WOODS, J.

JACKSON, J.

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^[1] The People charged Navaei with attempted perjury rather than perjury because there was no evidence Navaei had signed his deposition transcript.