People v. Moore

• Decision Date: 13 December 2012
• Docket Number: B236858
• Citation: 211 Cal.App.4th 1179,150 Cal.Rptr.3d 437
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jesse MOORE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

211 Cal.App.4th 1179

150 Cal.Rptr.3d 437

The PEOPLE, Plaintiff and Respondent,

v.Jesse MOORE, Defendant and Appellant.

B236858

Court of Appeal, Second District, Division 3, California.

Filed December 12, 2012

As Modified December 13, 2012

Certified for Partial Publication.^*

OPINION TEXT STARTS HEREIII. Probation conditions.

The trial court imposed a variety of probation conditions, including the following: “Do not own, use, or possess any dangerous or deadly weapons, including firearms, knives, and other concealable weapons.” Moore contends that this condition, which lacks a scienter requirement, is unconstitutionally vague and must be modified. Relying on People v. Freitas (2009) 179 Cal.App.4th 747, 102 Cal.Rptr.3d 51, he posits that without addition of an express knowledge requirement, he could be found in violation of probation for unwitting possession of a weapon.

Although Moore did not object to the challenged condition below, his contention is cognizable on appeal because it presents a pure question of law that may be resolved without reference to the sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 887–888, 55 Cal.Rptr.3d 716, 153 P.3d 282 ( Sheena K. ); People v. Kim (2011) 193 Cal.App.4th 836, 842, 122 Cal.Rptr.3d 599; People v. Freitas, supra, 179 Cal.App.4th at p. 750, 102 Cal.Rptr.3d 51.)

Trial courts have broad discretion to prescribe probation conditions to foster rehabilitation and protect public safety. (People v. Anderson (2010) 50 Cal.4th 19, 26, 112 Cal.Rptr.3d 685, 235 P.3d 11; People v. Olguin (2008) 45 Cal.4th 375, 379, 87 Cal.Rptr.3d 199, 198 P.3d 1; People v. Leon (2010) 181 Cal.App.4th 943, 948, 104 Cal.Rptr.3d 410.) A probation condition that imposes limitations upon constitutional rights must be narrowly tailored to achieve legitimate purposes. (Sheena K., supra, 40 Cal.4th at p. 890, 55 Cal.Rptr.3d 716, 153 P.3d 282; People v. Olguin, supra, at p. 384, 87 Cal.Rptr.3d 199, 198 P.3d 1; People v. Kim, supra, 193 Cal.App.4th at p. 843, 122 Cal.Rptr.3d 599.) 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.]” (Sheena K., supra, at p. 890, 55 Cal.Rptr.3d 716, 153 P.3d 282; People v. Leon, supra, at p. 949, 104 Cal.Rptr.3d 410; In re R.P. (2009) 176 Cal.App.4th 562, 566, 97 Cal.Rptr.3d 822.) “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.” (People v. Freitas, supra, 179 Cal.App.4th at p. 750, 102 Cal.Rptr.3d 51; In re R.P., supra, at p. 566, 97 Cal.Rptr.3d 822.) 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'....” (Sheena K., supra, at p. 890, 55 Cal.Rptr.3d 716, 153 P.3d 282; In re R.P.,supra, at p. 566, 97 Cal.Rptr.3d 822.)

Beginning with People v. Garcia (1993) 19 Cal.App.4th 97, 23 Cal.Rptr.2d 340, 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. (People v. Kim, supra,193 Cal.App.4th at pp. 843–845, 122 Cal.Rptr.3d 599, and cases cited therein.) ⁶“[T]here is now a substantial uncontradicted body of case law establishing, as a matter of law, that a probationer cannot be punished for presence, possession, association, or other actions absent proof of scienter.” ( People v. Patel,supra, 196 Cal.App.4th at p. 960, 126 Cal.Rptr.3d 855.)

Moore grabbed Pineda's sleeve, and Pineda pulled away. At the same time, Pineda answered his cellular telephone. Moore grabbed the phone. When Pineda threatened to call police, Moore said “ ‘fuck the police’ ” and broke the phone. When Pineda reached for the phone, Moore swung at Pineda, landing a punch on Pineda's shoulder and face. Moore stated, “ ‘Do you have money,’ ” “ ‘give me money,’ ”or something similar. He attempted to reach inside Pineda's rear pants pocket, where Pineda carried his wallet. The men struggled and Moore tried to push Pineda to the ground. Pineda landed on his knees, stood back up, and ran toward his house, with Moore chasing him. Moore threw the phone at Pineda, hitting him in the back. When Pineda reached his nearby home, a neighbor summoned police.b. Defense evidence.

Moore testified in his own behalf. He admitted that on the night of October 15, 2010, he was drunk, approached Pineda, and asked him for a cigarette. Pineda politely told Moore he did not speak English, and Moore's efforts to strike up a conversation with Pineda were unsuccessful. Moore then thought to himself, “ ‘Fuck this dude. He speaks English.’ ” Moore ran up to Pineda, who was talking on his cellular telephone, and grabbed the phone. It broke. Pineda ran, screaming in English, “ ‘Call the police. Call the police.’ ” Moore screamed after him, “ ‘You speak English now, don't you, you mother f-er.’ ” Moore threw the phone at Pineda.

Moore denied demanding money from Pineda, reaching for Pineda's pocket, grabbing his sweater, punching him, or pushing him to the ground. He never intended to rob Pineda. His only mention of money was to inform Pineda he did not have money to pay for cigarettes.

II. Procedure.

Trial was by jury. Moore was convicted of attempted second degree robbery (Pen.Code, §§ 664, 211) ² and misdemeanor vandalism (§ 594 subd. (a)). The trial court suspended imposition of sentence and placed Moore on probation for a term of three years, on condition he serve a year in jail. It imposed a restitution fine, a suspended probation restitution fine, a court security fee, a crime prevention fine, and a criminal conviction assessment, and ordered Moore to pay victim restitution. Moore appeals.

DISCUSSION

I.–II.^**

Freitas, relied upon by Moore, modified a probation condition prohibiting the defendant from owning, possessing, or having custody or control of any firearms or ammunition to incorporate an express scienter requirement. ( People v. Freitas, supra, 179 Cal.App.4th at pp. 749, 751–752, 102 Cal.Rptr.3d 51.) Freitas acknowledged that firearms and ammunition were readily recognizable, and it was “unnecessary to specify that defendant must know a gun is a gun.” (Id. at pp. 751–752, 102 Cal.Rptr.3d 51.) However, Freitas agreed with the defendant that “without the addition of a scienter requirement, he could be found in violation of probation if he merely borrows a car and, unbeknownst to him, a vehicle owner's lawfully obtained gun is in the trunk.” (Id. at p. 752, 102 Cal.Rptr.3d 51.) The court observed that former section 12021 (prohibiting felons from possessing firearms, now section 29800, subdivision (a)(1)), had been construed to contain an implied knowledge requirement. Moreover, the jury instruction relevant to that offense listed knowledge as an element. Freitas therefore found it appropriate to modify the probation condition to add an express knowledge requirement, because “the law has no legitimate interest in punishing an innocent citizen who has no knowledge of the presence of a firearm or ammunition.” (People v. Freitas, supra, at p. 752, 102 Cal.Rptr.3d 51.)

The parties here do not dispute that if Moore unknowingly was to possess a weapon or firearm, he would not be in violation of probation. The parties do disagree, however, regarding whether due process requires that the probation condition be modified to include an express knowledge requirement, or whether modification is unnecessary because a knowledge requirement is already “manifestly implied.” We believe the latter view is correct.

Certainly the weapons prohibition at issue here is distinct from many of the associational, presence, and possession prohibitions that are often the subject of express modifications. Where a probation condition prohibits association with certain categories of persons, presence in certain types of areas, or possession of items that are not easily amenable to precise definition, “an express knowledge requirement is reasonable and necessary. The affiliations and past history of another person may not be readily apparent without some personal familiarity. Similarly, despite the presence of gang graffiti, sites of gang-related activity may not be obvious to all. And it takes some experience or training to identify what colors, symbols, hand signs, slogans, and clothing are emblematic of various criminal street gangs.” (People v. Kim, supra, 193 Cal.App.4th at p. 845, 122 Cal.Rptr.3d 599.)

In contrast, there is no ambiguity regarding what is prohibited here: as Freitas pointed out, it is unnecessary to specify that defendant must know a gun is a gun. (People v. Freitas, supra, 179 Cal.App.4th at p. 752, 102 Cal.Rptr.3d 51; People v. Kim, supra, 193 Cal.App.4th at p. 845, 122 Cal.Rptr.3d 599 [“there is no similar uncertainty about whether an item is a firearm”].) As we explained in In re R.P., the term “ ‘dangerous or deadly weapon’ ” likewise has a clearly established meaning. (In re R.P., supra, 176 Cal.App.4th at pp. 567–568, 97 Cal.Rptr.3d 822.) There, we held that the phrase “ ‘dangerous or deadly weapon’ ” was not unconstitutionally vague when used in a probation condition. (Id. at p. 565, 97 Cal.Rptr.3d 822.) After surveying the relevant statutes, case law, jury instructions, and a legal dictionary, we explained: “legal definitions of ‘deadly or dangerous weapon,’ ‘deadly weapon,’ ‘dangerous weapon,’ and use in a ‘dangerous or deadly’ manner, consistently include the harmful capability of the item and the intent of its user to inflict, or...