Opinion
C089721
03-29-2022
The PEOPLE, Plaintiff and Respondent, v. Michael Patrick KELLEY III, Defendant and Appellant.
Aaron Joseph Schechter, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez, Supervising Deputy Attorney General, Catherine Tennant Nieto, Deputy Attorney General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, part II of the Discussion and the Disposition are certified for publication.
Aaron Joseph Schechter, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez, Supervising Deputy Attorney General, Catherine Tennant Nieto, Deputy Attorney General, for Plaintiff and Respondent.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
See footnote *, ante .
See footnote *, ante .
See footnote *, ante .
II. Stay-away Provision in Protective Order
A. Additional Background
At sentencing, the trial court issued a 10-year no-contact order pursuant to section 646.9, subdivision (k), with L.S. as the protected party. The criminal protective order states, among other things, defendant "must have no personal, electronic, telephonic, or written contact with" L.S., "must have no contact with [L.S.] through a third party, except an attorney of record," and, in the provision challenged here, "must not come within 400 yards of" L.S.
B. Defendant's Contentions
Defendant asserts that the stay-away provision is unconstitutionally vague because it does not specify that he must "knowingly" stay at least 400 yards away from L.S. Thus, based on the language of the provision, he could "unwittingly" violate the order, and the order may require him to avoid certain locations out of fear of committing an unintentional violation. Defendant complains the stay-away provision "presents uncertainty as to whether [he] can permissibly go about his business when he is released." Defendant asserts his contention is not forfeited because a pure question of law such as a facial challenge to a probation condition as being void for vagueness may be raised for the first time on appeal. He urges that, to render the provision constitutional and avoid being void for vagueness, the stay-away provision must be modified to specify that he must "knowingly" stay at least 400 yards away from L.S.
C. Vagueness Principles
"[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ " ( In re Sheena K. (2007) 40 Cal.4th 875, 890, 55 Cal.Rptr.3d 716, 153 P.3d 282.) "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. ( U.S. Const., Amends V, XIV ; Cal. Const., art. I, § 7.)’ " ( In re Sheena K. , at p. 890, 55 Cal.Rptr.3d 716, 153 P.3d 282.) The vagueness doctrine bars enforcement of a law " ‘ "which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." ’ " ( Ibid . ) "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." ’ " ( Ibid . ) "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." ’ " ( Ibid . )
We review a constitutional challenge to a stay-away order de novo. ( R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188, 135 Cal.Rptr.3d 791 [whether the restraining order passes constitutional muster, is a question of law subject to de novo review].)
D. Analysis
Although defendant did not object to the stay-away provision in the trial court, his contentions are cognizable on appeal because they raise a facial constitutional challenge involving a question of law that requires no reference to the sentencing record. ( In re Sheena K., supra , 40 Cal.4th at pp. 880-889, 55 Cal.Rptr.3d 716, 153 P.3d 282.)
Defendant relies on two cases in which similar provisions were modified to explicitly state a scienter requirement, People v. Rodriguez (2013) 222 Cal.App.4th 578, 166 Cal.Rptr.3d 187 ( Rodriguez ), disapproved in part in People v. Hall (2017) 2 Cal.5th 494, 503, footnote 2, 213 Cal.Rptr.3d 561, 388 P.3d 794 ( Hall ), and People v. Petty (2013) 213 Cal.App.4th 1410, 154 Cal.Rptr.3d 75 ( Petty ).
In Rodriguez , a probation condition required the defendant " ‘Stay away at least 100 yards from the victim, the victim's residence or place of employment, and any vehicle the victim owns or operates.’ " ( Rodriguez, supra , 222 Cal.App.4th at p. 584, 166 Cal.Rptr.3d 187.) The court noted that it "is well established that a probation violation must be willful to justify revocation of probation." ( Id . at p. 594, 166 Cal.Rptr.3d 187.) The court further stated: "No reasonable law enforcement officer or judge can expect probationers to know where their victims are at all times. The challenged condition does not require defendant to stay away from all locations where the victim might conceivably be. It requires defendant to remove himself (‘Stay away at least 100 yards ....’) when he knows or learns of a victim's presence." ( Ibid . ) However, turning to a different issue with the condition, the Rodriguez court determined that the condition "suffer[ed] from a fatal ambiguity in that it has not actually designated from whom defendant should stay away." ( Ibid . ) After discussing this defect, the court further stated that the "Attorney General concedes that a knowledge element should be added to this condition." ( Id . at p. 595, 166 Cal.Rptr.3d 187.) The court concluded its discussion stating, "The trial court may modify the condition to require that defendant not knowingly come within 100 yards of a known or identified victim. It would be even more clear and informative if the condition actually named the victims and described any locations and vehicles that defendant is to stay 100 yards from." ( Ibid. , italics added.) The Rodriguez court did not state that due process required the addition of a knowledge element to the provision. Indeed, a different panel of the same court subsequently stated: "In [ Rodriguez ], this court rejected the argument that an order requiring the defendant to ‘ "[s]tay away at least 100 yards from the victim, the victim's residence or place of employment, and any vehicle the victim owns or operates" ’ required an express knowledge element." ( People v. Hartley (2016) 248 Cal.App.4th 620, 634, 203 Cal.Rptr.3d 770 ( Hartley ).)
In Petty, supra , 213 Cal.App.4th 1410, 154 Cal.Rptr.3d 75, the defendant was subject to a stay-away order that required him "to stay at least 50 yards from the victim's residence and 100 yards from the victim and her daughter." ( Id . at p. 1413, 154 Cal.Rptr.3d 75.) After rejecting the defendant's claim that the provision was overbroad because it restricted his rights to travel and to freely associate, the court stated: "At defendant's request, however, we will modify the protective order to provide that defendant must not ‘knowingly’ come within 100 yards of the victim or her daughter." ( Id . at pp. 1424-1425, 154 Cal.Rptr.3d 75.) The court did not hold that due process required this modification.
Defendant acknowledges Hartley, supra , 248 Cal.App.4th 620, 203 Cal.Rptr.3d 770, cuts against his contention. In Hartley , as a condition of probation, the trial court prohibited the defendant from having any contact with the protected person and ordered him to stay at least 100 yards away from him. ( Id . at p. 632, 203 Cal.Rptr.3d 770.) Relying on both Petty and Rodriguez , the defendant challenged the provision as unconstitutionally vague, asserting that it was unclear whether unwitting violations fell within its scope. ( Id . at pp. 632-633, 203 Cal.Rptr.3d 770.) The Hartley court determined that the scope of the conduct prohibited by the condition was clear. ( Id . at p. 633, 203 Cal.Rptr.3d 770.) The court also relied on the premise that " ‘a probation violation must be willful to justify revocation of probation. [Citations.] ... "[A] crime cannot be committed by mere misfortune or accident." ’ " ( Id . at p. 634, 203 Cal.Rptr.3d 770, quoting Rodriguez, supra , 222 Cal.App.4th at p. 594, 166 Cal.Rptr.3d 187.) The court stated: the "addition of an express knowledge requirement would only make explicit what already is implicit: Hartley must be aware of or have knowledge of the [protected party] in order to personally—or by other means—contact him." ( Hartley , at p. 635, 203 Cal.Rptr.3d 770.) The court concluded: "Because we find the probation condition adequately describes the proscribed conduct and does not deprive Hartley of ‘ "fair warning" ’ in order ‘ "to know what is required of him, and for the court to determine whether the condition has been violated" ’ [citation], the stay-away probation condition can remain unchanged if the trial court elects to reimpose it on remand." ( Ibid . )
The court in Hartley remanded for resentencing based on an unrelated issue. (Hartley, supra , 248 Cal.App.4th at pp. 623, 628-632, 638, 203 Cal.Rptr.3d 770.)
Since Petty, Rodriguez , and Hartley , our high court decided Hall, supra , 2 Cal.5th 494, 213 Cal.Rptr.3d 561, 388 P.3d 794, on which the Attorney General relies. In Hall , the "terms of defendant's probation bar[red] him from possessing firearms or illegal drugs." ( Id . at p. 497, 213 Cal.Rptr.3d 561, 388 P.3d 794.) The defendant contended "these conditions ... are unconstitutionally vague on their face because they do not explicitly define the state of mind, or mens rea, required to sustain a violation of probation." ( Ibid . ) Defendant requested "modification of the conditions to convey explicitly that they apply only to knowing possession of the prohibited items." ( Ibid . ) Our high court stated that, "[t]o withstand a constitutional challenge on the ground of vagueness, a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition." ( Id . at p. 500, 213 Cal.Rptr.3d 561, 388 P.3d 794.) "In determining whether the condition is sufficiently definite, however, a court is not limited to the condition's text." ( Ibid . ) "We must also consider other sources of applicable law [citation], including judicial construction of similar provisions." ( Ibid . ) "[A] probation condition should not be invalidated as unconstitutionally vague ‘ " ‘if any reasonable and practical construction can be given to its language.’ " ’ " ( Id . at p. 501, 213 Cal.Rptr.3d 561, 388 P.3d 794.) Framing the specific issue before it, our high court stated: "a probation violation can occur only if defendant knowingly owned or possessed these items or had them in his custody or control. Consequently, the issue presented here is not what state of mind is required to sustain a violation of probation, but the extent to which that state of mind must be expressly articulated in the probation condition itself to provide defendant with fair warning of what the condition requires." ( Id . at p. 500, 213 Cal.Rptr.3d 561, 388 P.3d 794.) The court concluded that "the firearms and narcotics conditions are not unconstitutionally vague." ( Id . at p. 501, 213 Cal.Rptr.3d 561, 388 P.3d 794.) The court explained that relevant California case law already construed probation conditions involving the possession of firearms and drugs as prohibiting knowing possession of these items. ( Id . at p. 503, 213 Cal.Rptr.3d 561, 388 P.3d 794.) The court concluded that, "[b]ecause no change to the substance of either condition would be wrought by adding the word ‘knowingly,’ we decline defendant's invitation to modify those conditions simply to make explicit what the law already makes implicit." ( Ibid. , fn. omitted.)
Defendant asserts Hall "is specific to firearms and narcotics conditions – or at least ‘possessory probation conditions’ – ‘given the relevant case law’ applicable to those conditions." Thus, defendant maintains Hall is not applicable to a stay-away order. We disagree. We note that no published case, post- Hall , has ordered language added to a stay-away order to specify that the defendant must "knowingly" stay away from the protected party. And we see no principled reason to distinguish stay-away orders from firearms or possessory probation conditions, where the implicit nature of the scienter requirement is equally in play.
The court in Hartley stated that, at the time that case was decided, "[w]hether a no-contact probation condition must be ‘modified to explicitly include a knowledge requirement’ is an issue currently pending before the California Supreme Court." (Hartley, supra , 248 Cal.App.4th at p. 633, 203 Cal.Rptr.3d 770.) That court cited In re A.S. (2014) 227 Cal.App.4th 400, 173 Cal.Rptr.3d 586, review granted and depublished September 24, 2014, review dismissed March 22, 2017, S220280. In that case, our high court granted review limited to whether a no-contact probation condition must be modified to explicitly include a knowledge requirement and deferred further action in In re A.S. pending consideration and disposition of Hall . (Ibid . ) When our high court decided Hall , it dismissed review in In re A.S.
Indeed, in one published case, People v. Rhinehart (2018) 20 Cal.App.5th 1123, 229 Cal.Rptr.3d 721, the court considered, among other things, a probation condition that required the defendant to " ‘[s]tay out of places where alcohol is the primary item of sale, such as bars or liquor stores.’ " ( Id . at p. 1125, 229 Cal.Rptr.3d 721.) In considering that provision, the court discussed Hall and stated: "While Hall involved conditions barring a probationer from possessing certain contraband, its reasoning applies with equal force to conditions prohibiting a probationer from entering certain spaces , like the one at issue here. The condition forbidding Rhinehart from entering a business which primarily sells alcohol does not include reference to any mental state, but neither is it unconstitutionally vague. As Hall establishes, there is already a general presumption that a probation condition violation must be willful." ( Id . at p. 1128, 229 Cal.Rptr.3d 721, italics added.)
Although the instant case involves a challenge to a provision of a protective order issued pursuant to section 646.9, subdivision (k) rather than a probation condition, we apply the same approach as in Hall in considering defendant's vagueness challenge. As in Hall , we look beyond the text of the challenged provision itself and examine whether the challenged provision is too vague to be enforceable in light of similar provisions in other sources of applicable law. ( Hall, supra , 2 Cal.5th at p. 500, 213 Cal.Rptr.3d 561, 388 P.3d 794.)
Here, the trial court issued a criminal protective order to protect L.S. from communication and contact by defendant. ( § 646.9, subd. (k).) We note that the Penal Code requires a violation of such a protective order must be knowing. ( § 166, subd. (c)(1).) Section 166, subdivision (c)(1) states in pertinent part: "a willful and knowing violation of a protective order or stay-away court order ... shall constitute contempt of court, a misdemeanor ...." (Italics added.) Because a violation of a protective order must be "willful and knowing" (ibid .), proof of a violation would require the prosecution to prove that any violation was willful and knowing. The same should apply here—for defendant to violate the challenged provision of the restraining order, and to be found in violation of that provision, he would have to be found to have willfully and knowingly come within 400 yards of L.S. Thus, the "knowing" requirement is implicit in the court's stay-away order.
As noted, to withstand a constitutional challenge on the ground of vagueness, a provision "must be sufficiently definite to inform the [restrained party] what conduct is required or prohibited, and to enable the court to determine whether [he or she] has violated the condition." ( Hall, supra , 2 Cal.5th at p. 500, 213 Cal.Rptr.3d 561, 388 P.3d 794.) The challenged provision here notifies defendant of the identified protected party and forbids him from coming within a specified distance of her, 400 yards. That the provision does not contain the word "knowingly" does not render it unconstitutionally vague because the scienter requirement is implicit. ( Id . at p. 503, 213 Cal.Rptr.3d 561, 388 P.3d 794.) However, we note here, as did our high court in Hall , that trial courts "remain[ ] free to specify the requisite mens rea explicitly when imposing a condition of probation." ( Id . at pp. 503-504, 213 Cal.Rptr.3d 561, 388 P.3d 794.)
The distance the court chose here strikes us as somewhat unusual, at least based on the record before us. However, defendant does not challenge the distance as being unreasonable. Nevertheless, in light of the substantial distance—400 yards, the length of four football fields—we emphasize that, while we are not requiring the addition of an explicit scienter requirement by inserting the word "knowingly," that requirement is indeed implicit in the stay-away provision. Defendant cannot violate that provision without doing so knowingly.
Because adding the word "knowingly" would not change the substance of the stay-away provision, "we decline defendant's invitation to modify [it] simply to make explicit what the law already makes implicit." ( Hall, supra , 2 Cal.5th at p. 503, 213 Cal.Rptr.3d 561, 388 P.3d 794, fn. omitted.)
To the extent defendant makes a constitutional right to travel claim, in light of our holding, we need not address that contention. Regarding the restraining order issued here, defendant is free to go wherever he wants as long as he does not knowingly violate the order's stay-away provision.
DISPOSITION
The matter is remanded for resentencing, including consideration of the provisions of section 1170 as amended by Senate Bill 567. The judgment and the criminal protective order filed June 13, 2019, are otherwise affirmed.
We concur:
BLEASE, Acting P. J.
HOCH, J.