Filed 11/16/15 P. v. Vardehanhar CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H041375
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1241739)

         v.

EDWIN VARDEHANHAR,

         Defendant and Appellant.



                                              I. INTRODUCTION
         Defendant Edwin Vardehanhar was convicted after jury trial of vandalism, and the
jury found true the allegation that the amount of damage was more than $400. (Pen.
Code, § 594.)1 The trial court suspended imposition of sentence and placed defendant on
probation with various terms and conditions, including that he stay away from the victim
and a witness who testified at defendant’s trial.
         On appeal, defendant contends that the probation condition is unconstitutionally
vague because it does not contain a knowledge requirement. For reasons that we will
explain, we will modify the probation condition to include a knowledge element.




         1
             All further statutory references are to the Penal Code unless otherwise indicated.
                  II. FACTUAL AND PROCEDURAL BACKGROUND
        A. The Information and Jury Trial
        In August 2013, defendant was charged by information with felony vandalism
(§ 594, subds. (a) & (b)(1)). The evidence at the jury trial included the following.
        The victim, Randa V.,2 and defendant lived at the same apartment complex and
had socialized in a group setting on at least one occasion. The victim testified that
defendant liked one of her friends and repeatedly asked about the friend, but she told him
that the friend was not interested in him.
        The victim testified that she received a few calls shortly before midnight on
February 27, 2012. She answered the last one, and the caller said, “This is Edwin, your
neighbor.” The caller said “very bad words” to her, such as “You’re a stupid bitch, fuck
you.”
        The next morning the victim went to her car which had been parked in the
apartment garage overnight. She discovered that all four tires were flat and that there
were scratches all over the car. On the trunk area in particular there were scratches that
appeared to state, “take care with your ass.”
        Another tenant, Mariana Sanchez, testified that she had been in the garage about
midnight or between 12:00 and 1:00 a.m. Sanchez saw a person walk around a car and
leave a scratch mark. She later reported the incident to the police. At trial, Sanchez
identified defendant as the person she had seen scratching the car.
        The victim’s insurance company inspected the vehicle and determined that the
total cost of repairs would be more than $3,800. The victim ultimately received $3,400
from the insurance company.


        2
        The record contains various spellings of the victim’s last name, including by the
victim herself. In particular, the victim initially stated at trial that her last name was
“Vardeh.” When asked by the prosecutor to spell the entirety of her last name, she stated,
“V-a-r-d-e-h-d-i-z-a-j-t-a-k -- I’m sorry. V-a-r-d-e-h-t-a-k-y-a-h.”

                                                2
          Defendant’s brother testified for the defense that defendant had come over to the
brother’s house sometime after midnight to pay back money. According to the brother,
defendant ended up staying for the rest of the night.
          Defendant testified in his own behalf that the victim had invited him to her
apartment three or four times. Further, on one occasion, they had been riding in the back
of a vehicle and the victim started hugging him, “getting [his] hands,” and talking very
softly “like she [was his] girlfriend.” Defendant was not interested in the victim or her
friend.
          Defendant testified that he did not damage or scratch the victim’s car. He testified
that on the night in question, he visited a friend prior to 11:30 p.m. He subsequently went
to a bank to withdraw money, and then he went to his brother’s residence for the rest of
the night.
          The jury found defendant guilty of vandalism and found true the allegation that the
amount of damage was $400 or more.
          B. Sentencing
          In the probation report, the probation officer recommended, among other
probation conditions, that defendant not have contact with the victim and that he remain
100 yards away from her residence. At the sentencing hearing, the prosecution requested
no-contact and stay-away orders protecting the victim and Sanchez, the other tenant who
had testified during the prosecution’s case. According to the prosecution, defendant or a
family member had attempted to contact Sanchez during and after the trial.
          The trial court suspended imposition of sentence and placed defendant on
probation for three years with various terms and conditions, including that he serve
130 days in jail and that “defendant shall remain at least 100 yards away from” the victim
and Sanchez. Defendant ultimately indicated that he understood and accepted the terms
and conditions of probation.



                                                3
                                   III. DISCUSSION
       Defendant contends that the probation condition requiring him to “remain at least
100 yards away from” the victim and Sanchez is unconstitutionally vague. Defendant
argues that he cannot be expected to know the movements and whereabouts of these
two people, and thus a knowledge element must be added to the probation condition.
Although he did not object to the probation condition below, defendant contends that his
claim on appeal has not been forfeited.
       The Attorney General contends that defendant’s claim is forfeited by his failure to
object below. Regarding the substance of defendant’s claim, the Attorney General argues
that an explicit knowledge requirement is not constitutionally required. To the extent this
court determines that modification is necessary, the Attorney General contends that a
constructive knowledge element should be added, such as “know or reasonably should
know.”
       A. Forfeiture
       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 particular sentencing record developed below.
(In re Sheena K. (2007) 40 Cal.4th 875, 887-889 (Sheena K.).) In this case, the Attorney
General contends that defendant’s vagueness challenge is forfeited because this court
must refer to the sentencing record in order to evaluate defendant’s claim. The Attorney
General fails, however, to persuasively articulate how any particular aspect of the
sentencing record bears upon defendant’s claim. Because defendant’s facial vagueness
challenge to the probation condition raises a question of law that does not require
reference to the particular sentencing record developed below, we determine that his
claim is not forfeited.




                                             4
       B. Knowledge
       “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.) “[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.]” (Ibid.)
       Courts have ordered modification of probation conditions to incorporate a scienter
requirement where a probationer could unknowingly engage in the prohibited activity.
(People v. Petty (2013) 213 Cal.App.4th 1410, 1424 (Petty) [protective order modified
to state that the defendant “must not ‘knowingly’ come within 100 yards” of the victim];
In re Victor L. (2010) 182 Cal.App.4th 902, 912-913 [modifying probation condition to
prohibit knowing presence of weapons or ammunition].) “[P]robation conditions that
implicate constitutional rights must be narrowly drawn” and the knowledge requirement
“should not be left to implication.” (People v. Garcia (1993) 19 Cal.App.4th 97, 102;
accord, People v. Leon (2010) 181 Cal.App.4th 943.) We conclude that a stay-away
probation condition centered on a mobile individual should include an express knowledge
requirement to give defendant fair warning of what locations he must avoid.
       The Attorney General argues that an explicit knowledge requirement is
unnecessary because a trial court’s “authority to impose and enforce stay-away probation
conditions is based on statutory provisions which contain a knowledge requirement,”
citing sections 136.2 and 166, subdivision (c)(1). The Attorney General contends that,
“where a probation condition implements statutory provisions that apply to the
probationer independent of the condition and does not infringe on a constitutional right, it

                                              5
is not necessary to include in the condition an express scienter requirement that is
necessarily implied in the statute.” (People v. Kim (2011) 193 Cal.App.4th 836, 843.)
       We are not persuaded by the Attorney General’s argument. First, although
section 136.2 authorizes stay-away orders in certain circumstances, the Attorney General
does not point to anything in the record indicating that the stay-away condition in this
case was imposed pursuant to section 136.2. Rather, it appears from the sentencing
hearing that the trial court required defendant to stay away from the two people as a
condition of probation. Indeed, a trial court “enjoys wide discretion under section 1203.1
to impose a stay-away order as a condition of probation.” (People v. Selga (2008) 162
Cal.App.4th 113, 118 (Selga); see Petty, supra, 213 Cal.App.4th at p. 1424 [finding
“nothing in the record to suggest the court purported to act under any of the statutes
specially authorizing protective orders,” rather than pursuant to the court’s broad
discretion in imposing probation conditions under § 1203.1, subd. (j)]; Selga, supra, at
p. 120 [explaining that a violation of a criminal protective order may be punished as a
contempt of court, a misdemeanor, or a felony, while a violation of probation is not
necessarily punishable as a separate offense].) Second, although section 166,
subdivision (c)(1), provides that a “willful and knowing violation” of certain protective
orders or stay-away court orders “shall constitute contempt of court,” the Attorney
General fails to establish that the stay-away condition in this case falls within the list of
orders specified in subdivision (c)(1). In sum, we are not persuaded by the Attorney
General’s contention that an explicit knowledge element is unnecessary in this case.
       The Attorney General states that, although defendant seeks the inclusion of an
express knowledge element, he does not propose a specific modification. The Attorney
General observes that some courts have added a constructive knowledge element to
probation conditions so that the defendant is prohibited from engaging in certain conduct
if the defendant “know[s] or reasonably should know” of a specified circumstance.



                                               6
       We do not decide the issue of whether the “reasonably should know” language, as
proposed by the Attorney General, is necessary or proper. The Attorney General simply
observes that such language has been added to probation conditions in certain other cases.
Defendant does not address in his reply brief whether a constructive knowledge element
is appropriate in this case.
       Accordingly, we shall modify the stay-away order imposed as a condition of
probation to state that defendant shall remain at least 100 yards away from any location
where he knows the victim or Sanchez is present.
                                  IV. DISPOSITION
       The probation condition requiring defendant to remain at least 100 yards away
from Randa V. and Mariana Sanchez is ordered modified to state that defendant shall
remain at least 100 yards away from any location where he knows Randa V. or Mariana
Sanchez is present. As so modified, the order of probation is affirmed.




                                            7
                             ___________________________________________
                             BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MIHARA, J.




People v. Vardehanhar
H041375
