Filed 10/23/15 P. v. Nunez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H041402
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1361756)

         v.

ANGELA MARIE NUNEZ,

         Defendant and Appellant.



         Defendant Angela Marie Nunez pleaded no contest to assault with a deadly
weapon with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). 1
The trial court suspended imposition of sentence and placed defendant on probation for
three years. Defendant contends that the trial court erred when it imposed a criminal
protective order. We modify the order. As modified, the order is affirmed.


                                                I. Statement of Facts
         On July 27, 2013, police officers responded to a report of a possible robbery. The
victim, a transient, stated that a few days after he and defendant had argued when he
refused to go to Stockton with her, she entered his tent. After she called him derogatory
names and ordered him to return items of clothing that she had given him, the victim

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         All further statutory references are to the Penal Code unless otherwise stated.
ignored her. However, defendant began punching him and kicking him. A witness
reported that defendant pounded the victim’s leg and pulled a knife from her jacket. As
defendant walked away from the tent, she said, “ ‘Watch out!’ ” The victim had a
puncture wound on his leg and a laceration on his shoulder.


                                         II. Discussion
       Defendant contends that since there was no evidence that she had a domestic
relationship with the victim, the trial court erred when it imposed a no-contact order
pursuant to former section 136.2, subdivision (i)(1).
       Former section 136.2, subdivision (i)(1) stated in relevant part: “In all cases in
which a criminal defendant has been convicted of a crime of domestic violence as defined
in Section 13700, the court, at the time of sentencing, shall consider issuing an order
restraining the defendant from any contact with the victim. The order may be valid for
up to 10 years, as determined by the court.”
       Section 13700 defines “ ‘[d]omestic violence’ ” as “abuse committed against an
adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person
with whom the suspect has had a child or is having or has had a dating or engagement
relationship. For purposes of this subdivision, ‘cohabitant’ means two unrelated adult
persons living together for a substantial period of time, resulting in some permanency of
relationship. Factors that may determine whether persons are cohabiting include, but are
not limited to, (1) sexual relations between the parties while sharing the same living
quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4)
whether the parties hold themselves out as husband and wife, (5) the continuity of the
relationship, and (6) the length of the relationship.”
       Here, the trial court, the prosecutor, and the probation officer repeatedly referred
to the domestic violence aspects of the case. The complaint provided notice that the
prosecution intended to offer other acts of domestic violence pursuant to Evidence Code
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section 1109. At the change of plea hearing, the prosecutor stated that the terms of the
negotiated plea agreement included the “[s]tandard domestic violence terms.” The trial
court then asked defendant whether she had heard the prosecutor’s statement of the major
terms of the negotiated plea agreement, including “[a]ll the standard domestic violence
terms and conditions of probation.” Defendant responded, “Yes.” When the trial court
later asked defendant whether she understood that her sentence included a 52-week
domestic violence counseling program, she replied, “Yes.” The probation report included
a domestic violence lethality risk assessment as well as the recommendations that
defendant complete a domestic violence program and pay various domestic violence fees.
The probation officer also recommended that “[a] criminal Court protective order of up to
ten years be issued pursuant to Section 136.2 of the Penal Code and entered into the
Department of Justice Registry pursuant to Family Code Section 6380.” Defendant never
objected to the references to domestic violence.
       At the sentencing hearing, the trial court stated: “My understanding of the
negotiated agreement is this is to be eight months county jail minus any credits with
domestic violence terms.” There was no objection by defendant. The trial court placed
defendant on probation and ordered various conditions of probation, including that she
complete a certified domestic violence program. The prosecutor also asked the trial court
to impose a 10-year protective order, because it was a stabbing case and the prosecution
would have settled for a greater sentence if it had been able to compel the witnesses to
testify. Defense counsel stated, “I would just request a three year no-contact order.”
After the trial court imposed a criminal protective order for 10 years under former
section 136.2, subdivision (i)(1), defendant indicated that she understood the terms of the
no-contact order. The trial court also ordered defendant to attend a domestic violence
orientation class on August 11, 2014 at the probation department and instructed her to
return to court on September 25, 2014 with proof of her enrollment in the domestic
violence classes.
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       Based on this record, there was sufficient evidence that defendant and the victim
had been in a domestic relationship before she was convicted of assaulting him. Thus,
the trial court did not err when it imposed the criminal protective order pursuant to
former section 136.2, subdivision (i)(1).
       Defendant next contends that the criminal protective order is unconstitutionally
vague and overbroad.
       “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.) Although
defendant failed to object on constitutional grounds to the order, we may consider her
facial, constitutional challenges because they present purely questions of law. (In re
Sheena K. (2007) 40 Cal.4th 875, 888 (Sheena K.).) Accordingly, our review of these
probation conditions is de novo. (Id. at p. 889.)
       In examining whether a probation condition is void for vagueness, courts have
considered whether the condition is “ ‘sufficiently precise for the probationer to know
what is required of him [or her] . . . .’ ” (Sheena K., supra, 40 Cal.4th at p. 890, quoting
People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325.) “[T]he underpinning of a
vagueness challenge is the due process concept of ‘fair warning.’ ” (Sheena K., at p. 890.)
       The overbreadth doctrine focuses on other, though related, concerns. Under this
doctrine, “ ‘ “a governmental purpose to control or prevent activities constitutionally
subject to state regulation may not be achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected freedoms.” ’ [Citations.]” (In re
Englebrecht (1998) 67 Cal.App.4th 486, 497.) “ ‘A law’s overbreadth represents the
failure of draftsmen to focus narrowly on tangible harms sought to be avoided, with the
result that in some applications the law burdens activity which does not raise a
sufficiently high probability of harm to governmental interests to justify the interference.’
[Citation.]” (Ibid.)
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       Defendant contends that the criminal protective order is unconstitutionally vague
and overbroad, because it does not include a specific distance limitation. There is no
merit to this contention because the order specifically states that defendant “must not
come within 300 yards of the protected persons . . . named above.”
       Defendant also contends that the criminal protective order is unconstitutionally
vague and overbroad, because it does not contain an explicit knowledge requirement.
The Attorney General concedes that the condition should be modified to include a
knowledge requirement.
       In People v. Rodriguez (2013) 222 Cal.App.4th 578 (Rodriguez), this court
considered the constitutionality of a stay-away condition.2 Rodriguez reasoned: “It is
well established that a probation violation must be willful to justify revocation of
probation. [Citations.] It is also established that ‘. . . Penal Code section 26 provides that
a person is incapable of committing a crime where an act is performed in ignorance or
mistake of fact negating criminal intent; a crime cannot be committed by mere misfortune
or accident’ [citation] and that a probation condition ‘should be given “the meaning that
would appear to a reasonable, objective reader.” ’ (Olguin, supra, 45 Cal.4th 375, 382.)
[¶] 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 . . . when he knows or learns of a victim’s presence.”
(Rodriguez, at p. 594.) Rodriguez remanded the matter to the trial court, 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

2
       In Rodriguez, the condition required 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.” (Rodriguez, supra, 222 Cal.App.4th at p. 594.)
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defendant is to stay 100 yards from.” (Id. at p. 595.) Here, unlike in Rodriguez, the
victim has been identified. However, given the Attorney General’s concession, we will
modify the condition to include a knowledge requirement.


                                     III.   Disposition
       The order is modified to state that defendant “not knowingly come within 300
yards” of the victim. As modified, the order is affirmed.




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                                   _______________________________
                                   Mihara, J.



WE CONCUR:




______________________________
Bamattre-Manoukian, Acting P. J.




______________________________
Grover, J.




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