Opinion
H036782
11-22-2011
THE PEOPLE, Plaintiff and Respondent, v. ISAAC ALEXANDER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS110240A)
INTRODUCTION
Defendant Isaac Alexander pleaded no contest to assault with a firearm. (Pen. Code, § 245, subd. (a)(2).) The trial court suspended imposition of sentence and placed defendant on probation with various terms and conditions, including that he not associate with any individuals who he knows or has "reason to know" are "gang members, drug users, or on any form of probation or parole supervision."
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the phrase "reason to know" renders the probation condition unconstitutionally vague and that the phrase should be stricken from the condition.
For reasons that we will explain, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
As defendant was convicted by plea, the following facts are taken from the probation report, which was based on a report from the Marina Police Department. Dominic Jackson told police that he received a call about two individuals coming to purchase marijuana. He and Donovan Jackson walked to meet defendant and Q. on the street. According to Donovan, while defendant and Q. were buying marijuana from Dominic, defendant "pulled out a handgun" from his pants and pointed it at Dominic and Donovan. Q. grabbed the marijuana from Dominic and then ran away with defendant. Dominic and Donovan chased after Q. and defendant. Dominic tackled Q. and retrieved the marijuana. During the struggle between Dominic and Q., defendant "pulled out the handgun again and started to rack the handgun by manipulating the slide." Defendant "pointed the gun at Donovan." When the police arrived, they observed several people, including defendant, Dominic, and Donovan. Q. was sitting in a nearby vehicle with another individual, and there was a handgun near Q. in the vehicle.
Defendant was charged by complaint with two counts of assault with a firearm (§ 245, subd. (a)(2); counts 1 & 2) and one count of carrying a loaded firearm (§ 12031, subd. (a)(1); count 3). The information further alleged that defendant personally used a firearm during the commission of the offenses in counts 1 and 2 (§ 12022.5, subd. (a)), and that he was not the registered owner of the firearm involved in count 3.
Defendant pleaded no contest to one count of assault with a firearm (count 1) with the understanding that probation would "probably" or "likely" be granted and that he might receive up to 365 days in jail. The trial court suspended imposition of sentence and placed defendant on probation with various terms and conditions, including that he not "associate with any individuals you know to be . . . or have reason to know to be gang members, drug users, or on any form of probation or parole supervision." Defendant was also ordered to serve 300 days in county jail, with credit for 87 days. The remaining counts and allegations were dismissed.
As reflected in the minutes of the proceeding, which were signed by the trial court, the probation condition requires defendant to "[n]ot associate with any individuals you know or have reason to know to be gang members, drug users, or on any form of probation or parole supervision."
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DISCUSSION
As we have just recited, the probation condition at issue prohibits defendant from associating with any individuals who he knows or has "reason to know" are gang members, drug users, or on any form of probation or parole supervision. On appeal, defendant contends that the "reason to know" phrase renders the probation condition unconstitutionally vague, and that the condition should be modified by striking the phrase from the condition. He argues that the "concept of 'reason to know' has no criteria" and the " 'reason to know' test is so imprecise" that he "cannot reasonably apply it." Defendant acknowledges that he did not challenge the probation condition in the trial court but contends that he may nevertheless raise the issue on appeal.
The Attorney General implicitly concedes that defendant has not forfeited his claim concerning the constitutionality of the probation condition, but contends that the condition need not be modified.
Forfeiture
We first consider whether defendant has forfeited his vagueness challenge to the probation condition. The California Supreme Court has determined that the forfeiture rule does not apply when a probation condition is challenged as unconstitutionally vague 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, 888-889 (Sheena K.); see also People v. Leon (2010) 181 Cal.App.4th 943, 949 (Leon).) To this extent, therefore, we consider the substance of defendant's challenge to the probation condition.
Probation Condition
"In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. [Citations.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121; Leon, supra, 181 Cal.App.4th at p. 948.) However, "[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, 40 Cal.4th at p. 890; Leon, at p. 949.) "[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.] The vagueness doctrine bars enforcement of ' "a statute which either forbids or requires the doing of an act in terms so vague that men [and women] of common intelligence must necessarily guess at its meaning and differ as to its application." [Citation.]' [Citation.] A vague law 'not only fails to provide adequate notice to those who must observe its strictures, but also "impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." [Citation.]' [Citation.] In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that 'abstract legal commands must be applied in a specific context,' and that, although not admitting of 'mathematical certainty,' the language used must have ' "reasonable specificity." ' [Citation.]" (Sheena K., at p. 890.)
In the context of penal statutes, the California Supreme Court has determined that culpability based on the "reasonably should know" constructive knowledge standard is not vague. For example, in In re Jorge M. (2000) 23 Cal.4th 866, the California Supreme Court determined that proving a violation of the Assault Weapons Control Act required showing "that a defendant charged with possessing an unregistered assault weapon knew or reasonably should have known the characteristics of the weapon bringing it within the registration requirements of the AWCA." (Id. at pp. 869-870.) The court rejected a suggestion that such an interpretation was unconstitutional. The court explained, "That a criminal statute contains one or more ambiguities requiring interpretation does not make the statute unconstitutionally vague on its face [citation], nor does it imply the statute cannot, in general, be fairly applied without proving knowledge of its terms." (Id. at p. 886; see also People v. Rodriguez (1986) 42 Cal.3d 730, 779-782 (Rodriguez) [holding constitutional the special circumstance of peace officer murder under section 190.2, subdivision (a)(7), which applies to a defendant who has intentionally killed another who the defendant "reasonably should have known" was a peace officer engaged in the performance of official duty]; accord, People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, superseded by statute on another ground as stated in In re Steele (2004) 32 Cal.4th 682, 691; People v. Mathews (1994) 25 Cal.App.4th 89, 97-98 [holding constitutional former section 417, subdivision (b), which prohibited a defendant from exhibiting a firearm in the presence of another when the defendant "reasonably should know" the person is a peace officer engaged in the performance of official duty]; People v. Turner (2007) 155 Cal.App.4th 1432, 1436 [ordering probation condition modified to state that the defendant is precluded from associating with people he " 'knows or reasonably should know' " is under 18 years old].)
In this case, the probation condition at issue prohibits defendant from associating with anyone he knows or has "reason to know" is of a certain status. Defendant contends that the "reason to know" phrase is "significantly different" from the phrase "reasonably should know," which as we have explained, has been approved in other contexts. Defendant contends that the "reason to know" phrase is "unduly vague," whereas the "reasonably should know" phrase "implies that the probationer has sufficient information such that a reasonable person would have knowledge of the relevant facts."
We are not persuaded that the phrase "reason to know" sets forth a significantly different or, relevant to the vagueness challenge here, a less precise standard than the phrase "reasonably should know." Regarding the latter phrase, the word "reasonably" means "in a reasonable manner," and "reasonable" means "not conflicting with reason" and "being or remaining within the bounds of reason." (Webster's 3d New Internal Dict. (1993) p. 1892.) The word "should" has the function of "express[ing] . . . obligation." In the probation condition at issue, either the phrase "reason to know" or the phrase "reasonably should know" would require defendant to stay away from those individuals who he has a rational ground to know is of a certain status. We do not believe the two phrases would create significantly different standards in this context. (See People v. Morris (2010) 185 Cal.App.4th 1147, 1155 [using "reason to know" phrase in reference to a sentence enhancement under section 667.9, which applies to a defendant who commits an enumerated offense against a victim who has a specified disability or condition that "is known or reasonably should be known" to the defendant].)
Defendant further contends that the "reason to know" phrase in his probation condition is similar to the word "suspect," which this court found unconstitutionally vague in People v. Gabriel (2010) 189 Cal.App.4th 1070 (Gabriel). We do not believe that "suspect" is equivalent to the phrase at issue in this case.
In Gabriel, the probation condition required the defendant to " '[n]ot associate with any individuals you know or suspect to be gang members, drugs users, or on any form of probation or parole supervision.' " (Gabriel, supra, 189 Cal.App.4th at p. 1073, italics added.) This court concluded that the word "suspect" should be deleted from the condition. In reaching this conclusion, this court explained: "To 'suspect' is 'to imagine (one) to be guilty or culpable on slight evidence or without proof' or 'to imagine to exist or be true, likely, or probable.' (Merriam-Webster's Collegiate Dict. (10th ed. 1999) p. 1187 (Webster's).) To 'imagine' is 'to form a notion of without sufficient basis.' (Webster's, at p. 578.) Given this lack of specificity, the word 'suspect' fails to provide defendant with adequate notice of what is expected of him when he lacks actual knowledge that a person is a gang member, drug user, or on probation or parole. Moreover, inclusion of this word renders the condition insufficiently precise for a court to determine whether a violation has occurred." (Gabriel, supra, 189 Cal.App.4th at p. 1073.)
In contrast to Gabriel, where the challenged term "suspect" failed to provide the defendant "with adequate notice of what is expected of him when he lacks actual knowledge that a person is a gang member, drug user, or on probation or parole" (Gabriel, supra, 189 Cal.App.4th at p. 1073), we believe that the phrase "reason to know" as used in the probation condition in this case imposes an objective standard and, specifically, that it requires a minimal level of objective justification.
Next, we understand defendant to be arguing that Sheena K., supra, 40 Cal.4th 875, requires an "actual knowledge requirement" and that the "reason to know" language must therefore be stricken.
In Sheena K., the California Supreme Court concluded that a probation condition prohibiting the defendant from associating with " 'anyone disapproved of by probation' " was unconstitutionally vague. (Sheena K., supra, 40 Cal.4th at p. 889.) The court determined that "modification to impose an explicit knowledge requirement is necessary to render the condition constitutional. [Citations.]" (Id. at p. 892.) The court reasoned that, without "an express requirement of knowledge," "the probation condition did not notify defendant 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, fn. omitted.) The court suggested that "form probation orders be modified so that such a restriction explicitly directs the probationer not to associate with anyone 'known to be disapproved of' by a probation officer or other person having authority over the minor." (Id. at p. 892.)
Although Sheena K. requires an "express" or "explicit" knowledge requirement (Sheena K., supra, 40 Cal.4th at pp. 891, 892), we are not persuaded that Sheena K. stands for the proposition that "actual knowledge" is required regarding the conduct that is prohibited. In Sheena K., the California Supreme Court expressed approval of the appellate court's insertion in the probation condition of "the qualification that defendant have knowledge of who was disapproved of by her probation officer." (Id. at p. 892.) The California Supreme Court did not address whether a "reason to know" standard might also satisfy constitutional concerns. "Cases are not authority for propositions they do not consider. [Citation.]" (People v. Martinez (2000) 22 Cal.4th 106, 118.) In this case, the probation condition at issue contains an explicit knowledge requirement. Defendant is prohibited from associating with anyone who he "know[s]" or has "reason to know" is of a certain status.
Accordingly, we determine that the probation condition prohibiting defendant from associating with individuals who he knows or "has reason to know" are gang members, drug users, or on any form of probation or parole supervision is not unconstitutionally vague.
DISPOSITION
The judgment (order of probation) is affirmed.
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
ELIA, ACTING P. J.
MIHARA, J.