Filed 9/15/16 P. v. Martinez CA1/1
                         NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                           FIRST APPELLATE DISTRICT

                                                        DIVISION ONE


THE PEOPLE,
          Plaintiff and Respondent,
                                                                             A145585
v.
DAMEIN MARTINEZ,                                                             (Solano County
                                                                             Super. Ct. No. FCR312123)
          Defendant and Appellant.


          Defendant Damein Martinez appeals from an order granting probation after he
pleaded no contest to a felony count of attempted second degree robbery. He contends
that six of his gang-related probation conditions are unconstitutionally vague because
they lack an express knowledge requirement and do not include a definition of the term
“gang.” He further claims that one of those conditions is unconstitutionally overbroad,
based on his interpretation that it forbids him from acquiring any tattoos, not just gang-
related ones. Finally, he argues that a condition prohibiting him from possessing
weapons (the weapon-possession condition) is vague without the addition of the word
“knowingly” and overbroad because it does not protect his right to use a weapon in self-
defense. We conclude that the challenged gang conditions must be modified to include a
knowledge requirement but otherwise affirm.




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                                           I.
                                 FACTUAL AND PROCEDURAL
                                      BACKGROUND
          In January 2015, Martinez approached the victim, displayed a knife, and
demanded the victim’s keys.1 After the victim refused, Martinez’s juvenile co-offender
grabbed the victim’s throat and pinned the victim to a wall. As he was released, the
victim “felt a sharp object poke him in his back,” which he believed to be Martinez’s
knife. Martinez and the co-offender fled and were eventually arrested by the Vacaville
police.
          Martinez was charged with a felony count of attempted second degree robbery,
accompanied by the allegation that he personally used a deadly and dangerous weapon,
and a felony count of assault with a deadly weapon.2 Under a plea agreement, he pleaded
no contest to the attempted-robbery count, and the enhancement allegation and remaining
count were dismissed. The trial court suspended imposition of the sentence and placed
Martinez on formal probation for four years.
          On appeal, Martinez challenges six probation conditions that appear under the
heading “Gang Terms” in the written probation order. (Some capitalization omitted.)
These conditions prohibit him from (1) “associating with any known gang members or
associates of any gang”; (2) “associating with anyone who possesses weapons”; (3)
“wearing any gang[-]associated clothing, emblems[,] or insignias”; (4) “possessing any
type of gang-related paraphernalia, including, but not limited to, gang graffiti, symbols,
photographs, [and] member rosters or other gang writings or gang-oriented publications”;
(5) “acquiring any additional tattoos, permanent or temporary, or any other type of gang-
related marks or scars or burns”; and (6) “being present at any court proceeding involving



1
    The facts in this paragraph are drawn from the probation report.
2
 The charges were brought under Penal Code sections 211 and 664 (attempted robbery)
and 245, subdivision (a)(1) (assault). The personal-use allegation was made under Penal
Code section 12022, subdivision (b)(1). All further statutory references are to the Penal
Code.

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gang members in which he is not a party or a subpoenaed witness.”3 Martinez objected
to the imposition of gang terms on the basis that the crime was not gang-related, but the
trial court found they were appropriate because he had a reported affiliation with a gang
and had “recently acquired [a] gang tattoo.”
       Martinez also challenges a probation condition that directs him “not to own or
have in his possession[,] custody[,] or control any firearm, ammunition for firearms[,] or
any other type of dangerous or deadly weapon.”4 He did not object to the imposition of
this term.
                                               II.
                                        DISCUSSION
       A.      The Six Challenged Gang-related Conditions Must Be Modified to
               Expressly Require Martinez’s Knowledge of What Is Prohibited.
       Martinez claims that six of the gang-related probation conditions are vague
because the term “gang” is not defined and the conditions lack an express knowledge
requirement. He also claims that the term prohibiting additional tattoos is overbroad
because it covers all tattoos, not just gang-related ones. We agree that these six
conditions must be modified to include or clarify an express knowledge requirement, but
we are not persuaded by Martinez’s remaining contentions.
       Trial courts have “broad discretion to impose [probation] conditions to foster
rehabilitation and to protect public safety. . . .” (People v. Carbajal (1995) 10 Cal.4th
1114, 1120; see § 1203.1, subd. (j).) A probation condition must, however, “ ‘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,’ ” or else it is
unconstitutionally vague. (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) In

3
  The quoted language is from the juvenile court’s oral pronouncement, which is
consistent with the written probation order in all relevant respects except that it
eliminates a redundancy in the weapon-related term. We conclude that the oral
pronouncement controls. (See People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.)
4
 The quoted language is from the juvenile court’s oral pronouncement, which is
consistent with the written term.


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addition, if a condition “imposes limitations on a person’s constitutional rights,” it “must
closely tailor those limitations to the purpose of the condition to avoid being invalidated
as unconstitutionally overbroad.” (Ibid.)
       We review vagueness and overbreadth claims de novo. (People v. Martinez
(2014) 226 Cal.App.4th 759, 765.) The Attorney General does not argue that Martinez’s
failure to raise constitutional objections below to the challenged gang-related conditions
resulted in a forfeiture of his claims, and we will consider these claims on the merits.
(See Sheena K., supra, 40 Cal.4th at p. 889; Martinez, at pp. 765-766.)
       Initially, we disagree with Martinez that the gang-related conditions are vague
because they lack a specific definition of the term “gang.” He relies on People v. Lopez
(1998) 66 Cal.App.4th 615, which concluded that although the term “gang” was “on its
face, uncertain in meaning,” in context “it [was] apparent the word was intended to apply
only to associations which have for their purpose the commission of crimes.” (Id. at
pp. 631-632.) Despite its determination that the term was sufficiently clear in context,
the Lopez court ordered the probation condition at issue modified to incorporate the
definition of “criminal street gang” in section 186.22. (Id. at pp. 632-634, 638.) We
agree with Lopez that the term is sufficiently clear in context, and adding a definition of
the term “gang” is therefore unnecessary. (See In re Justin S. (2001) 93 Cal.App.4th 811,
816, fn. 3 [declining to modify probation condition to refer to statutory definition of
“ ‘gang’ ” because word’s definition was “fairly implied in the condition”].)
       Martinez also argues that six of the gang-related conditions are vague because they
lack an express knowledge requirement. “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. Moore
(2012) 211 Cal.App.4th 1179, 1184.) There is a distinction between categories “that are
not easily amenable to precise definition,” which justify such a knowledge requirement
(id. at p. 1185), and categories whose scope is sufficiently apparent, which do not.



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       Based on this distinction, we agree with Martinez that the probation condition
prohibiting him from “associating with anyone who possesses weapons” must be
modified to prohibit him from associating with anyone who he knows possesses weapons.
Similarly, we agree that the condition prohibiting him from “being present at any court
proceeding involving gang members” must be modified to prohibit him from being
present at any court proceeding that he knows involves gang members. In addition, the
conditions involving “gang[-]associated clothing, emblems[,] or insignias,” “gang-related
paraphernalia,” and “gang-related” tattoos and other markings must be modified to
prohibit him from wearing, possessing, or acquiring items that he knows are gang-related.
It may not be immediately apparent whether a person has a weapon, whether a court
proceeding involves a gang member (particularly if such gang affiliation has nothing to
do with the case), or whether various items or symbols are gang-related, and an express
knowledge requirement is therefore appropriate. (See In re Victor L. (2010) 182
Cal.App.4th 902, 912-913; People v. Leon (2010) 181 Cal.App.4th 943, 949-951, 954.)
Finally, we agree that the condition prohibiting Martinez from “associating with any
known gang members or associates of any gang” should be modified to clarify that his
knowledge of a particular person’s status is required.5 (See In re H.C. (2009)
175 Cal.App.4th 1067, 1071-1072.)
       Martinez argues that one of the probation conditions that we have concluded must
be modified, which prohibits him “from acquiring any additional tattoos, permanent or
temporary, or any other type of gang-related marks or scars or burns,” is also overbroad.
He claims that the condition prohibits him from acquiring any kind of tattoo and therefore
impermissibly infringes on his First Amendment rights. We are not persuaded, and we
conclude that the condition covers only gang-related tattoos. By using the phrase “any


5
  The Attorney General asks that we include the phrase “or reasonably should know” in
any modification we make. Although we agree that a constructive knowledge
requirement is permissible (see People v. Rodriguez (2013) 222 Cal.App.4th 578, 588-
589), one is not necessary, and there is no evidence that the trial court intended to impose
such a requirement here.


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other type of gang-related marks or scars or burns,” the juvenile court made clear that
only gang-related tattoos are forbidden. (Italics added.) And given that the condition is
designated as a gang term, it is more reasonable to interpret it to address only gang-
related body modifications. (See People v. Olguin (2008) 45 Cal.4th 375, 382 [probation
conditions interpreted to give them “ ‘the meaning that would appear to a reasonable,
objective reader’ ”].) In any event, we have already removed any ambiguity by
modifying this condition to address the knowledge issue, so that the condition now
forbids Martinez from acquiring “additional tattoos, permanent or temporary, or any
other type of marks or scars or burns that defendant knows are gang-related.”
       B.     The Weapon-possession Condition Is Neither Vague nor Overbroad.
       Martinez claims that the weapon-possession condition is vague because it does not
include an express scienter requirement and overbroad because it infringes on his right to
act in self-defense. We disagree.
       As discussed above, to avoid vagueness a probation condition must “ ‘be
sufficiently precise’ ” to give notice and enable fair enforcement, and to avoid
overbreadth it must be narrowly tailored to its purpose if it infringes on a probationer’s
constitutional rights. (Sheena K., supra, 40 Cal.4th at p. 890.) We review Martinez’s
vagueness and overbreadth claims de novo, and we consider them on the merits despite
his failure to object to the weapon-possession condition below. (People v. Martinez,
supra, 226 Cal.App.4th at pp. 765-766; see Sheena K., at p. 889.)
       Martinez contends that the weapon-possession condition is vague because it does
not include an express scienter requirement that he “knowingly” possess the prohibited
weapons.6 Such an express scienter requirement is unnecessary, however, because “[a]
court may not revoke probation unless the evidence supports ‘a conclusion [that] the
probationer’s conduct constituted a willful violation of the terms and conditions of
probation,’ ” as opposed to an unintentional violation due to circumstances beyond the


6
 A similar issue is currently pending before our state Supreme Court. (People v. Hall
(2015) 236 Cal.App.4th 1124, review granted Sept. 9, 2015, S227193.)


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probationer’s control. (People v. Cervantes (2009) 175 Cal.App.4th 291, 295.) As a
result, there is no need to modify the condition to make this requirement explicit. (See,
e.g., People v. Contreras (2015) 237 Cal.App.4th 868, 887; People v. Rodriguez, supra,
222 Cal.App.4th at p. 591; People v. Moore, supra, 211 Cal.App.4th at p. 1185.)
       Martinez also claims that the weapon-possession condition must be modified “to
permit temporary possession for the purposes of using a weapon in self-defense” because
“[s]elf-defense is one of the ‘inalienable rights’ secured by the California Constitution.”
In People v. Forrest (2015) 237 Cal.App.4th 1074, the Fourth District Court of Appeal
rejected the same argument. (Id. at pp. 1082-1083.) The court concluded that no
modification to address self-defense was necessary, reasoning that an express reference to
that concept might lead a probationer to wrongly believe that possessing a weapon was
permitted “in some circumstances in anticipation of the possible need for self-defense”
and that “no reasonable law enforcement official or court [would] interpret the
prohibition of weapon possession to extend to a fleeting possession of a weapon” in self-
defense. (Id. at p. 1083.)
       Urging us to disregard People v. Forrest, supra, 237 Cal.App.4th 1074 as wrongly
decided, Martinez claims that there is “no authority . . . suggesting that a probation term
can dispense with a constitutionally-protected right merely so that the condition will read
more forcefully to the defendant.” The Forrest court did not “dispense with” a
probationer’s right to self-defense, however, but merely determined that a weapon-
possession condition need not expressly recognize that right to be constitutional.
Martinez also argues that “the Forrest court’s confidence in the discretion of law
enforcement and lower courts” is misplaced because a probation condition is akin to a
contract term and “must be precise and represent the mutual understanding of the
parties.” In certain circumstances, a condition could be vague because it leaves too much
discretion to law enforcement officials and thus creates a risk of arbitrary enforcement.
(See, e.g., In re Victor L., supra, 182 Cal.App.4th at pp. 910, 913.) But Martinez’s claim
is that the failure to exempt the possession of a weapon while acting in self-defense
renders the condition too expansive, not too unclear. In any event, probation conditions


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need be only reasonably precise (Sheena K., supra, 40 Cal.4th at p. 890), and “the void-
for-vagueness doctrine does not apply simply ‘ “ ‘because there may be difficulty in
determining whether some marginal or hypothetical act is covered by [the challenged]
language.’ ” ’ ” (In re Ana C. (2016) 2 Cal App 5th 333, 341.) We agree with the
reasoning in Forrest and conclude that no modification to address self-defense is
warranted.
                                            III.
                                        DISPOSITION
      The April 23, 2015 minute order and order of probation are modified as follows:
      1.     The second gang-related condition is modified to read, “Not associate with
persons who defendant knows are members or associates of any gang.”
      2.     The third gang-related condition is modified to read, “Not associate with
persons who defendant knows are in possession of weapons.”
      3.     The fourth gang-related condition is modified to read, “Not wear any
clothing, emblems, or insignias that defendant knows are gang-associated.”
      4.     The fifth gang-related condition is modified to read, “Not possess any
paraphernalia that defendant knows are gang-related, including, but not limited to, gang
graffiti, symbols, photographs, and member rosters or other gang writings or gang-
oriented publications.”
      5.     The sixth gang-related condition is modified to read, “Not acquire any
additional tattoos, permanent or temporary, or any other type of marks or scars or burns
that defendant knows are gang-related.”
      6.     The seventh gang-related condition is modified to read, “Not attend any
court proceedings that defendant knows involve gang members and to which defendant is
not a party or a subpoenaed witness.”
      As so modified, the judgment is affirmed.




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                                   _________________________
                                   Humes, P.J.


We concur:


_________________________
Dondero, J.


_________________________
Banke, J.




People v. Martinez (A145585)




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