Filed 6/20/17 P. v. Williams CA5


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

THADDIUS LANDEL WILLIAMS, JR.,

Defendant and Appellant.

F073066

(Super. Ct. No. F15905566)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Glenda S. Allen-Hill, Judge.
Benjamin A. Owens, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

Appellant Thaddius Landel Williams, Jr., pled no contest to felony vandalism (Pen. Code, § 594, subd. (a)). On appeal, Williams contends two of the conditions of his probation are unconstitutionally vague. We find partial merit to this contention and modify the judgment accordingly. In all other respects, we affirm.
FACTS
Williams and the confidential victim (CV) dated for several years and had a child together. On August 31, 2015, Williams was subject to a domestic violence restraining order when he went to CV’s residence to see his child. After becoming upset, Williams threw a beer bottle at the front window of CV’s residence, breaking it. He then forced his way into the house and broke CV’s laptop before placing her stereo speakers in his truck and driving off. Williams returned to CV’s residence a short time later, left his truck there, and drove off in CV’s Chevy Tahoe (Tahoe). Later, he returned to CV’s residence a third time, left CV’s Tahoe in the driveway, and drove off in his own truck.
On September 4, 2015, Williams was arrested during a traffic stop.
On September 8, 2015, the Fresno County District Attorney filed a complaint charging Williams with first degree burglary (§ 459/count 1), felony vandalism (count 2), unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a)/count 3), and misdemeanor disobeying a domestic relations court order (§ 273.6, subd. (a)/count 4).
On September 22, 2015, Williams pled no contest to felony vandalism in exchange for the dismissal of the remaining counts.
On November 24, 2015, the court suspended imposition of sentence and placed appellant on probation for three years on condition that he serve 305 days in custody. Williams’s probation conditions included the following two conditions that he contends are unconstitutionally vague: “Do not possess or control any dangerous or deadly weapon[s,] [i]ncluding firearms and ammunition,” and “Do not contact the victim or [the] victim’s family members[.]”
DISCUSSION
The Weapons Condition
“Trial courts have broad discretion to prescribe probation conditions to foster rehabilitation and protect public safety. [Citations.] A probation condition that imposes limitations upon constitutional rights must be narrowly tailored to achieve legitimate purposes. [Citations.] Further, ‘[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.]’ [Citations.] ‘A probation condition which either forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application, violates due process.’ [Citations.] The ‘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” .…’ ” (People v. Moore (2012) 211 Cal.App.4th 1179, 1184 (Moore).)
Williams contends the weapons condition is unconstitutionally vague because it does not have an express knowledge requirement. People v. Hall (2017) 2 Cal.5th 494 (Hall) is dispositive of this contention.
In Hall, supra, 2 Cal.5th 494, our Supreme Court considered whether a probation condition prohibiting the possession of firearms, illegal drugs, and other contraband must be modified to include an express requirement of knowing possession of the prohibited items. The court explained, “[r]evocation of probation typically requires proof that the probation violation was willful.” (Id. at p. 498.) The court further explained that in the context of conditions barring the possession of contraband, revocation requires knowledge. (Id. at p. 499.) The Hall court noted that criminal statutes prohibiting the possession of contraband are generally construed to contain an implicit knowledge requirement even where the statute is silent. (Id. at p. 501.) According to the court, this reasoning applies to probation conditions: “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.’ ” ’ ” (Id. at p. 502, quoting In re Jorge M. (2000) 23 Cal.4th 866, 872.) As such, the court held no express requirement was necessary. (Hall, at p. 503.) In accord with Hall, we conclude that Williams’s weapons condition was not unconstitutionally vague.
The No Contact Probation Condition
Williams contends that the no contact probation condition is unconstitutionally vague because it does not have a knowledge requirement and without such a requirement, he could violate this condition if he unwittingly contacted the CV through social media or members of the CV’s family without knowing their relationship to her. He further contends that because the condition does not demarcate who is a family member and who is not, the condition is vague and this can be cured by limiting the condition to “immediate family” as defined in section 646.9. Respondent concedes that the no contact condition should have a knowledge requirement but argues that this eliminates the necessity of defining “immediate family.”
“Beginning with People v. Garcia (1993) 19 Cal.App.4th 97, California appellate courts have routinely added an explicit knowledge requirement to probation conditions prohibiting a probationer from associating with certain categories of persons, frequenting or remaining in certain areas or establishments, and possessing certain items.” (Moore, supra, 211 Cal.App.4th at pp. 1184-1185.) Thus, we agree with the parties that the no contact condition should contain a knowledge requirement.
We also agree with respondent that a scienter requirement makes a special definition of “immediate family” unnecessary. Although family members may include a large group of people, including some with attenuated relationships with the CV, requiring that Williams have knowledge of that family relationship eliminates the possibility that he will unwittingly violate this condition.
DISPOSITION
The judgment is modified to add a scienter requirement to the no contact condition so that the condition reads, “Do not knowingly contact the victim or the victim’s family members.” As modified, the judgment is affirmed.