P. v. Pagaduan

 

 

 

 

 

 

 

 

Filed 11/8/13  P. v. Pagaduan CA6

> 

> 

> 

> 

> 

> 

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

SIXTH
APPELLATE DISTRICT

 

 
>

THE PEOPLE,   Plaintiff and Respondent,   v.   ARTHUR COPUZ PAGADUAN, JR.,   Defendant and Appellant.

H039308      (Santa Clara County       Super. Ct. No. C1231232)

 

>I. 
INTRODUCTION

            Defendant
Arthur Copuz Pagaduan, Jr. pleaded guilty to assault by means of force likely
to produce great bodily injury
(Pen. Code, § 245, subd. (a)(4)).href="#_ftn1"
name="_ftnref1" title="">[1]  The trial court suspended imposition of
sentence and placed defendant on probation for three years with various terms
and conditions.  Relevant to this appeal,
one of the probation conditions prohibits defendant from possessing or
consuming alcohol, and from going to places where alcohol is the primary item
of sale.

            On appeal,
defendant contends that the alcohol-related probation condition is
unconstitutionally vague and/or overbroad because it does not expressly include
a knowledge requirement.

            For reasons
that we will explain, we will modify the judgment relating to the challenged
condition of probation and affirm the judgment as so modified.

>II. 
FACTUAL AND PROCEDURAL BACKGROUNDhref="#_ftn2" name="_ftnref2" title="">[2]

            On April 6, 2012, at about 12:50 a.m., officers responded to a restaurant
where a fight had reportedly broken out. 
Security officers were escorting people out of the restaurant.  Defendant wrestled with a security officer
and was then handcuffed.  As he was being
escorted outside, defendant kicked another security officer in the face.

            Defendant
was subsequently charged with committing assault by means of force likely to
produce great bodily injury
(§ 245, subd. (a)(4)), and he pleaded guilty to that charge on November 26, 2012.

            In the
probation report, the probation officer recommended the court impose the
following condition of probation:  “The defendant
shall not possess or consume alcohol or illegal substances or knowingly go to
places where alcohol is the primary item of sale.”

            At the January 23, 2013 sentencing hearing,
the trial court orally pronounced the conditions of probation, which included
one based on the above recommendation. 
The court stated:  “You shall not
possess or consume any alcohol or illegal substances or go to anyplace [>sic] where alcohol is a primary item of
sale . . . .”href="#_ftn3" name="_ftnref3"
title="">[3]

>III. 
DISCUSSION

            Defendant
challenges the alcohol-related probation condition on the ground that the
condition is unconstitutionally vague and/or overbroad because it does not
include a knowledge requirement. 
Defendant contends that he “could conceivably be found in violation of
his probation if he is driving a car, and unbeknownst to him, a passenger is
carrying alcohol, or a bottle of alcohol has been left in the car by someone
else.”

A.            Forfeiture

            Before
turning to the substance of defendant’s constitutional claim, we first consider
whether the claim has been forfeited by his failure to raise it below.  Our Supreme Court has determined that the
forfeiture rule does not apply when a probation condition is challenged as
unconstitutionally vague or overbroad on its face and the claim can be resolved
on appeal as a pure question of law without reference to the sentencing
record.  (In re Sheena K. (2007) 40 Cal.4th 875, 887-889 (>Sheena K.); see also >People v. Leon (2010) 181 Cal.App.4th
943, 949 (Leon).)  In this case, we will consider the substance
of defendant’s claim to the extent it presents pure questions of law without
reference to the sentencing record.

B.            Analysis

            “A
probation condition that imposes limitations on a person’s constitutional
rights must closely tailor those limitations to the purpose of the condition to
avoid being invalidated as unconstitutionally overbroad.”  (Sheena
K., supra, 40 Cal.4th at p. 890; >Leon,
supra, 181 Cal.App.4th at pp. 948-949.) 
In addition, “[a] probation condition ‘must be sufficiently precise for
the probationer to know what is required of him [or her], and for the court to
determine whether the condition has been violated,’ if it is to withstand a
[constitutional] challenge on the ground of vagueness.”  (Sheena
K., supra, at p. 890; >Leon, supra, at p. 949; Freitas,
supra, 179 Cal.App.4th at p. 750.) 
“[T]he underpinning of a vagueness challenge is the due process concept
of ‘fair warning.’  [Citation.]  The rule of fair warning consists of ‘the due
process concepts of preventing arbitrary law enforcement and providing adequate
notice to potential offenders’ [citation], protections that are ‘embodied in
the due process clauses of the federal and California Constitutions.  [Citations.]’ 
[Citation.]”  (>Sheena K., supra, at p. 890.)  In
order to be sufficiently precise for the probationer to know what is required
of him or her, a requirement of knowledge should be included in probation
conditions prohibiting the possession of specified items.  (Freitas,
supra, at pp. 751-752.)  “[T]he law has no legitimate interest in punishing
an innocent citizen who has no knowledge of the presence of [the prohibited
items].”  (Id. at p. 752.)

            The
Attorney General contends that the challenged probation condition “is not
constitutionally infirm because a knowledge requirement is implicit in the
condition.”  The Attorney General points
out that a probation violation must be willful. 
As explained by the court in People v. Cervantes (2009) 175
Cal.App.4th 291, 295:  “A court may not
revoke probation unless the evidence supports ‘a conclusion [that] the
probationer’s conduct constituted a willful violation of the terms and
conditions of probation.’  [Citation.]  Where a probationer is unable to comply with a
probation condition because of circumstances beyond his or her control and
defendant’s conduct was not contumacious, revoking probation and imposing a
prison term are reversible error.  [Citation.]”

            The
Attorney General also acknowledges that “the decisions are in conflict”
regarding whether “a knowledge requirement is properly implied in a no-alcohol
probation condition even when not expressly stated.”  For instance, in People v. Patel
(2011) 196 Cal.App.4th 956, 960, the Third District Court of Appeal modified a
no-alcohol probation condition to include a knowledge requirement, although it
stated that it would construe all future probation conditions proscribing
possession to include such a requirement such that it would not be necessary to
request modification of such conditions in that court.

            In >Sheena K., the California Supreme Court
considered the constitutionality of a probation condition forbidding the
juvenile offender from associating with “ ‘anyone disapproved of by probation.’
”  (Sheena
K., supra, 40 Cal.4th at p.
889.)  The California Supreme Court
concluded that the condition was unconstitutionally vague because it did not
notify the juvenile offender “in advance with whom she might not associate
through any reference to persons whom defendant knew to be disapproved of by
her probation officer.”  (>Id. at pp. 891-892.)  It further concluded that “modification to
impose an explicit knowledge requirement is necessary to render the condition
constitutional.”  (Id. at p. 892.)

            Although
the probation condition in Sheena K.
did not concern the possession or consumption of alcohol, we believe it prudent
to follow the Supreme Court’s lead by adding a knowledge requirement to the
probation condition in this case.

>IV.  DISPOSITION

            The judgment (order of probation) is
ordered modified as follows.

            The probation condition concerning
the consumption and possession of alcohol is modified to state:  “You shall not knowingly possess or
consume any alcohol or illegal substances or knowingly go to any places where
alcohol is a primary item of sale.”

            As so
modified, the judgment is affirmed.

 

 

                                                                                ___________________________________________

                                                            Bamattre-Manoukian, ACTING P.J.

 

 

WE CONCUR:

 

 

__________________________

Márquez,
J.

Grover, J., Concurring and
Dissenting

            I concur in affirming the judgment; however, I
respectfully dissent from modifying the challenged probation condition because
I believe the majority applies the reasoning of In re Sheena K. (2007) 40 Cal.4th 875 (>Sheena K.) too broadly.  In my view, the probation condition at issue
here needs no express knowledge provision to ensure due process in the form of
a “fair warning” to the probationer.

            The
majority correctly notes that Sheena K. did
not concern the possession or consumption of alcohol.  At issue in Sheena K. was a probation condition proscribing conduct completely
within the probation officer’s subjective discretion, namely, not associating
with “anyone disapproved of by probation.” 
(Sheena K., supra,
at p. 878.)  A knowledge
requirement is needed in such a probation condition to ensure reasonable notice
of which persons are to be avoided. 
Indeed, most probation conditions restricting association depend on
avoiding a type of person based on some characteristic that may or may not be
outwardly apparent.

            A seminal
case on the issue of probation conditions prohibiting association is >People v. Garcia (1993)
19 Cal.App.4th 97 (Garcia),
which was cited with approval in Sheena
K.  In Garcia, the court determined that a condition barring association
with “ â€˜any felons, ex-felons, users or sellers of narcotics’ â€ (>Id. at p. 100) was an
unconstitutionally overbroad infringement on freedom of association absent an
explicit knowledge requirement.  (>Id. at p. 102.)  In rejecting the Attorney General’s
invitation to construe the challenged condition as containing an implicit
scienter requirement, the Garcia
court noted “the rule that probation conditions that implicate constitutional
rights must be narrowly drawn, and the importance of constitutional rights,
lead us to the conclusion that this factor should not be left to implication.”  (Ibid.)  I do not believe that Garcia, Sheena K., nor
cases following those authorities regarding conditions prohibiting >association, stand for the proposition
that scienter must be explicit in probation conditions generally when no constitutional right is at stake; certainly
statutes are not held to such a standard.

            It is well
established that an individual will not be subject to criminal sanctions
without proof of a mental state corresponding to the prohibited conduct.  As the California Supreme Court has
explained, “the requirement that, for a criminal conviction, the prosecution
prove some form of guilty intent, knowledge, or criminal negligence is of such
long standing and so fundamental to our criminal law that penal statutes will
often be construed to contain such an element despite their failure expressly
to state it.  ‘Generally, “ â€˜[t]he
existence of a mens rea is the rule of, rather than the exception to, the
principles of Anglo-American criminal jurisprudence.’
. . . [Citation.]  In
other words, there must be a union of act and wrongful intent, or criminal
negligence.  (Pen. Code §20;
[citation].)’ â€  (>In re Jorge M. (2000)
23 Cal.4th 866, 872, quoting People
v. Coria (1999) 21 Cal.4th 868, 876.)  “[A]t least where the penalties imposed are
substantial, [Penal Code] section 20 can fairly be said to establish a
presumption against criminal liability without mental fault or negligence,
rebuttable only by compelling evidence of legislative intent to dispense with
mens rea entirely.”  (>Jorge M. at p. 879.)

            As the
Attorney General points out, and the majority acknowledges, it is similarly
established that a probation violation must be willful to justify revocation of
probation.  (People v. Zaring (1992) 8 Cal.App.4th 362, 379
[probationer 22 minutes late to court]; People
v. Galvan (2007) 155 Cal.App.4th 978, 982 [failure to report due
to deportation].)  As explained in >People v. Cervantes (2009)
175 Cal.App.4th 291, 295 (Cervantes),
in which a probationer failed to appear for a review hearing due to being in
the custody of immigration officials:  “A
court may not revoke probation unless the evidence supports ‘a conclusion
[that] the probationer’s conduct constituted a willful violation of the terms
and conditions of probation.’ [Citing People
v. Galvan, supra.]”  Noncompliance is
not willful when it is attributable to circumstances beyond a probationer’s
control (Cervantes, supra, at p. 295),
just as nonpayment is not willful unless a probationer has the ability to
pay.  (People v. Quiroz (2011) 199 Cal.App.4th 1123,
1129; Pen. Code, § 1203.2, subd. (a).)

            The concern
in Garcia about overbroad
infringement on a constitutional right, and the concern in Sheena K. about vagueness and adequate notice of proscribed
behavior arose in the context of probation conditions prohibiting association,
a core First Amendment right.  In
contrast, a condition prohibiting the possession and consumption of alcohol
does not directly implicate a constitutional right.  Where there is no infringement of
constitutional rights, a condition’s breadth is bounded only by its reasonable
relationship to the underlying criminal offense and to preventing future
criminality.  (People v. Lent (1975) 15 Cal.3d 481, 486; People v. Olguin (2008) 45 Cal.4th 375, 379.)  Similarly, vagueness need not be a concern
when knowledge is reasonably implicit in a condition’s wording.  “A probation condition should be given ‘the
meaning that would appear to a reasonable, objective reader.’ ”  (Olguin,
supra, 45 Cal.4th  at p. 382.)

            I believe
it is fair and reasonable to interpret a probation condition that prohibits
possessing or consuming alcohol or frequenting an alcohol-based business as
containing an implicit scienter element, just as statutes regulating controlled
substances have been interpreted.  “[A]lthough
criminal statutes prohibiting the possession, transportation, or sale of a
controlled substance do not expressly contain an element that the accused be
aware of the character of the controlled substance at issue ([Health & Saf.
Code,] §§ 11350-11352, 11357-11360, 11377-11379), such a requirement has been
implied by the courts.”  (>People v. Coria, supra,
21 Cal.4th at p. 878.) 
“The essential elements of unlawful possession of a controlled substance
are ‘dominion and control of the substance in a quantity usable for consumption
or sale, with knowledge of its presence and of its restricted dangerous drug
character.’ ” (People v. Martin
(2001) 25 Cal.4th 1180, 1184.)            I
am not convinced that the Constitution requires more explicit clarity in an
alcohol-related probation condition than in penal statutes.  Because any violation of the challenged
condition must be proven to be willful, and because the plain meaning of the
prohibited conduct is clear, I would affirm the judgment without modification.>

 

                                                                        ______________________________________

                                                                        Grover,
J.