Filed 2/19/15 P. v. Chamu CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065710

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCE331920)

JONATHAN CHAMU,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Daniel B.

Goldstein, Judge. Affirmed as modified.

         Jason L. Jones, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Arlene A. Sevidal and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff

and Respondent.


         Jonathan Chamu was convicted of aggravated assault with a true finding on a gang

enhancement. On appeal, he argues that four of his probation conditions are
unconstitutionally vague or overbroad. We modify two of the conditions, and as so

modified, affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On May 5, 2013, a group of males, including defendant, chased after and assaulted

another male (Noe) while incarcerated at a juvenile detention facility. Defendant and two

other males (Oscar and Sebastian) started chasing Noe as he was walking near the

exercise area. A correctional officer ordered them to "drop" and "cover" but they

continued chasing Noe. A fourth male (Luis) joined the chase from a different direction.

Luis caught up to Noe and grabbed him, and Noe went to the ground. The four assailants

repeatedly punched and kicked Noe until the correctional officers intervened with pepper

spray and subdued them.

       A prosecution gang expert testified that the four assailants, including defendant,

were members of the Diablos gang, and the victim was a member of a rival gang. The

expert opined the assault was for the benefit of the Diablos gang because attacking a rival

gang member in concert, even in a custodial setting, shows the gang's strength, increases

its status, and protects the gang from being targeted by other rivals.

       Defendant was convicted of assault by means of force likely to produce great

bodily injury, with a true finding that the offense was committed for the benefit of a gang.

The court placed him on three years' formal probation and ordered that he serve 132 days

in custody.




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                                       DISCUSSION

                 I. General Principles Governing Probation Conditions

       A trial court has broad discretion to select probation conditions that foster

rehabilitation and protect public safety. (People v. Leon (2010) 181 Cal.App.4th 943,

948.) A condition that forbids conduct that is not itself criminal must be reasonably

related to the defendant's crime or to preventing future criminality. (People v. Perez

(2009) 176 Cal.App.4th 380, 383.) To avoid unconstitutional overbreadth, a probation

condition that imposes limitations on a person's constitutional rights must closely tailor

those limitations to the purpose of the condition. (Leon, supra, at pp. 948-949.)

       To avoid unconstitutional vagueness, the condition should be sufficiently precise

for the probationer to know what is required and for the court to determine whether the

condition has been violated. (People v. Leon, supra, 181 Cal.App.4th at p. 949.) The

condition should be specific enough so that ordinary people can understand what conduct

is prohibited. (In re Byron B. (2004) 119 Cal.App.4th 1013, 1018.) "A probation

condition should be given 'the meaning that would appear to a reasonable, objective

reader.' " (People v. Olguin (2008) 45 Cal.4th 375, 382.) The probation condition should

be evaluated in its context, and only reasonable specificity is required. (People v. Lopez

(1998) 66 Cal.App.4th 615, 630.)

       On appeal, we independently review questions of unconstitutional overbreadth or

vagueness. (People v. Martinez (2014) 226 Cal.App.4th 759, 765.)




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                                        II. Analysis

       The four conditions challenged by defendant are included in a standardized

probation form under a category entitled "gang conditions." (Capitalization omitted.)

We consider each condition in turn.

                Condition 12. a.: Restriction on Appearing at Courthouse

       Condition 12. a. states: "Do not appear in court or at the courthouse unless you

are a party or witness in the proceedings."

       Defendant argues this condition is overbroad because it restricts his constitutional

right to access to the courts; it contains no language narrowing its application to gang-

related proceedings; and it does not set forth exceptions for access to the courts for lawful

purposes apart from being a party or a witness. The Attorney General concedes the

condition should be modified, and we agree.

       This probation condition is designed to prevent gang members from intimidating

witnesses at gang-related proceedings. (People v. Martinez, supra, 226 Cal.App.4th at p.

767.) Several appellate courts have found similar courthouse restrictions overbroad

because they did not confine the restriction to cases that involve gang intimidation

concerns, and they did not permit access to the courts under legitimate circumstances

other than being a party or witness. (Id. at pp. 765-768; People v. Leon, supra, 181

Cal.App.4th at pp. 952-954; People v. Perez, supra, 176 Cal.App.4th at pp. 383-386.)

We likewise find the condition here overbroad.

       Defendant requests that we strike the condition instead of modifying it, contending

his other probation conditions adequately prohibit him from intimidating persons at court

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proceedings. In support, he cites conditions prohibiting him from threatening another

person and requiring him to obey all laws (which would include the offense of witness

intimidation defined in Penal Code section 136.1), and gang-related conditions

prohibiting him from associating with gang members, exhibiting gang signs, and

displaying or possessing gang-related items.

       The trial court could reasonably determine that notwithstanding these other

probation conditions, a condition specifically targeting gang intimidation at a courthouse

is warranted given the acute problem of witness intimidation that impedes prosecution of

gang-related crimes. Accordingly, we decline to strike the condition, but modify it to

narrow it to gang-related proceedings, as follows: "Do not be present at any court

proceeding or courthouse when you know there are proceedings involving either criminal

street gang charges or a person associated with a criminal street gang as a member or

witness, unless you are a party, defendant, or witness in a proceeding or have permission

from the probation department." (See People v. Leon, supra, 181 Cal.App.4th at p. 954;

People v. Martinez, supra, 226 Cal.App.4th at pp. 767-768; In re E.O. (2010) 188

Cal.App.4th 1149, 1157, fn. 5.) Under this modification, in the event defendant has a

legitimate purpose to be at a courthouse while a gang-related proceeding is occurring

even though he is not a party or witness, he may request and obtain permission from the

probation department. (See People v. Leon, supra, 181 Cal.App.4th at pp. 953-954

[probation officer may be given discretion to implement terms of probation, although this

discretion should not be "unfettered" or " 'entirely open-ended' "]; People v. Pirali (2013)



                                               5
217 Cal.App.4th 1341, 1350 [restricting access to Internet was not overbroad because

Internet could be used upon approval of probation officer].)

                   Condition 12. f.: Restriction on Possessing Weapons

       Condition 12. f. states: "Do not knowingly own, transport, sell, or possess any

weapon, firearm, replica firearm or weapon, ammunition, or any instrument used as a

weapon."

       Claiming unconstitutional vagueness and overbreadth, defendant asserts (1) the

term "replica" is vague, (2) the phrase "any instrument used as a weapon" is vague, and

(3) the condition is overbroad because it lacks an exception for temporary possession in

lawful self-defense.

Replica

       To support his claim that the word replica is vague, defendant cites two dictionary

definitions, stating that replica is defined (1) in the Collins English dictionary as " 'an

exact copy or reproduction, especially on a smaller scale,' " and (2) in the Merriam-

Webster dictionary as " 'an exact or very close copy of something.' " He posits that the

former encompasses small objects shaped like weapons including paperweights or plastic

swords, whereas the latter is limited to "objects faithfully reproduced on a full scale." He

contends the condition is designed to encompass objects that a victim might mistakenly

think are real weapons, and that instead of the term "replica" the condition should state

any " 'instrument or device which a reasonable person would believe to be capable of

being used as a firearm or weapon.' "



                                               6
       This claim of constitutional vagueness is unavailing. The probation condition

prohibits weapon possession, and in this context reasonable persons would understand

that a replica simply means something that looks like a weapon. No reasonable person

would construe the condition as applying to a small-scale model that did not look

anything like a real weapon, regardless of a reference to " 'smaller scale' " in a dictionary.

Any Instrument Used as a Weapon

       Defendant argues the phrase "any instrument used as a weapon" is vague because

the term "used" could mean an instrument defendant intends to use as a weapon, or any

instrument that is sometimes capable of being used as a weapon. He posits that the latter

interpretation would "prohibit the possession of such a wide array of objects that

compliance would be impossible," citing for example, his possession of a bat on the way

to baseball practice. Defendant requests the condition be modified to state " 'any

instrument used by the probationer as a weapon.' " (Italics omitted.)

       Again, because this condition is clearly directed at prohibiting weapon possession,

when read in context, reasonable persons would understand that "any instrument used as

a weapon" refers to an item that is being used, or intended to be used, as a weapon, not

any object that might conceivably be used as a weapon but with no circumstances

suggesting such use was intended. (See In re R.P. (2009) 176 Cal.App.4th 562, 569-

570.) Consistent with this, the phrase "used as a weapon" on its face excludes items that

are merely capable of being used as a weapon but are not actually being used as such.

Further, because the condition requires defendant to have knowledge that the instrument

is used as a weapon, defendant will not be subjected to a probation violation unless he

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knows the instrument was intended for use as a weapon (i.e., possession of a bat in the

context of a group of gang members on the way to a confrontation, not on the way to

baseball practice). There is no need for modification.

Possession for Self-defense

       Defendant argues the condition prohibiting weapon possession is overbroad unless

it is modified to include an exception for possession that " 'is justified because the firearm

or weapon is used in accordance with the law of self-defense.' " Defendant recognizes

that he should not be allowed to preemptively carry a weapon based on "vague concerns

for his safety," but rather contends "should he find himself in a real emergency where his

life is under immediate threat, he should not be prohibited from defending himself from

that threat even where doing so requires the use of a weapon or an improvised weapon."

       We reject this contention of constitutional overbreadth. When a defendant

commits a violent crime, a strict condition precluding possession of weapons is extremely

important to public safety. Given the importance of clearly communicating to defendant

that he not possess any weapons, it is reasonable to exclude a reference to self-defense to

ensure that he does not think he can carry a weapon in some circumstances in anticipation

of the possible need for self-defense. We are satisfied that no reasonable law

enforcement official or court will interpret the proscription on weapon possession to

extend to a fleeting possession of a weapon in the event, for example, defendant is

assaulted and he temporarily seizes an object to use as a weapon in self-defense. The

omission of a reference to self-defense in the straightforward proscription against weapon

possession does not rise to the level of constitutional overbreadth.

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            Condition 12.g.: Restriction on Being in the Presence of Weapons

       Condition 12. g. states: "Do not remain in any building, vehicle or in the presence

of any person where you know a firearm, deadly weapon, or ammunition exists."

       Defendant asserts this condition is overbroad because it prohibits him from being

at any location where there are armed security personnel, including, for example,

government buildings or political rallies. He contends this condition improperly restricts

his constitutional rights of association and to access the courts, and the condition should

be modified to restrict his presence at locations where weapons are illegally present. We

agree. Given the widespread presence of armed security personnel, the condition unduly

restricts defendant's access to a broad array of locales that do not create a risk that he will

engage in criminality, thus infringing on his constitutional liberty interests with no

relationship to deterring criminal conduct. Further, the probation condition appears to be

designed to prohibit defendant from being in situations where he might be tempted to

participate in criminal activity or gain access to weapons in the possession of others.

Such concerns are highly unlikely to arise in circumstances where the weapons are

legitimately possessed.

       The Attorney General's citation to In re Victor L. (2010) 182 Cal.App.4th 902 does

not persuade us otherwise. Victor L. added a scienter requirement to a similar weapons-

presence restriction (id. at pp. 912-913), but did not address the issue of overbreadth

based on application of the restriction when the weapons are lawfully possessed.




                                               9
       Accordingly, we modify the condition to state: "Do not remain in any building,

vehicle or in the presence of any person where you know a firearm, deadly weapon, or

ammunition illegally exists."

            Condition 12. i. Restriction on Possession of Gang-Related Items

       Condition 12. i. states: "Do not knowingly wear, display, use, or possess any

insignias, photographs, emblems, badges, buttons, caps, hats, jackets, shoes, flags,

scarves, bandanas, shirts, or other articles of clothing evidencing affiliation

with/membership in the Diablo gang."

       Defendant argues this condition is unconstitutionally vague and overbroad because

although it contains a scienter requirement for his possession of the items, it does not

contain a scienter requirement for the fact that they are gang-related. To the contrary,

reasonable persons would interpret the restriction on defendant's knowing possession of

items evidencing gang affiliation to mean he must both (1) know he has the items, and (2)

know they are gang-related. There is nothing in the language of the condition suggesting

that defendant will have violated the condition if he knowingly possesses an item that he

has no basis to know is gang-related. The whole purpose of the condition is to prohibit

his possession of gang-related materials, and clearly the knowledge requirement extends

to this core purpose. There is no need to modify the condition.

                                       DISPOSITION

       We modify probation condition 12. a. to state: "Do not be present at any court

proceeding or courthouse when you know there are proceedings involving either criminal

street gang charges or a person associated with a criminal street gang as a member or

                                             10
witness, unless you are a party, defendant, or witness in a proceeding or have permission

from the probation department."

      We modify probation condition 12. g. to state: "Do not remain in any building,

vehicle or in the presence of any person where you know a firearm, deadly weapon, or

ammunition illegally exists."

      The trial court is directed to forward a copy of the corrected conditions to the

probation authorities. As so modified, the judgment is affirmed.




                                                                              HALLER, J.

WE CONCUR:



NARES, Acting P. J.



MCINTYRE, J.




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