Filed 1/15/14 P. v. Rodriguez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                          H039314
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1241888)

         v.

CHRISTOPHER RODRIGUEZ,

         Defendant and Appellant.



         Defendant Christopher Rodriguez pleaded no contest to inflicting corporal injury
on a cohabitant. (Pen. Code, § 273.5, subd. (a).)1 The trial court granted a three-year
term of probation including six months in county jail as a condition of probation. Among
other conditions of probation, the court imposed a five-year peaceful contact order and
ordered defendant not to possess “any item under the law during probation that would be
considered a deadly or dangerous weapon.”
         On appeal, defendant contends the trial court lacked authority to impose a five-
year peaceful contact order lasting two years longer than his three-year probationary
period. Defendant also argues that the condition not to possess a deadly or dangerous
weapon is vague and overbroad absent a scienter requirement, and violates his
constitutional right to possess property.

         1
             Subsequent undesignated statutory references are to the Penal Code.
       We will modify the length of the peaceful contact order to be coextensive with
defendant’s probationary term. As to the condition that defendant not possess a deadly or
dangerous weapon, we will modify it to prohibit knowing possession of a deadly or
dangerous weapon, but we find no violation of defendant’s constitutional right to possess
property.
                        I. FACTUAL AND PROCEDURAL BACKGROUND2
       On August 16, 2012, police responded to a report of a domestic violence incident
in the City of Santa Clara. The victim, defendant’s girlfriend, told police she was
sleeping on the couch when she was awakened by defendant, who was in a rage. He
believed she had taken his wallet, and he demanded to know where it was. He told her,
“You know where it is bitch,” and grabbed her face, forcing her head down onto the
couch. The victim could not breathe and resisted physically until she managed to escape.
She had light bruising around her mouth area, blood splatter on her cheeks, an abrasion
inside her mouth, and broken blood vessels in the white of her eyes.
       Defendant denied these allegations and claimed the victim had imagined the event
as a result of mental illness. She was eight weeks pregnant with their child at the time.
       A felony complaint charged defendant with inflicting corporal injury on a
cohabitant (§ 273.5, subd. (a); count 1), assault by means of force likely to produce great
bodily injury (§ 245, subd. (a)(4); count 2), and violating a protective order (§ 166,
subd. (c)(1); count 3). Defendant pleaded no contest to inflicting corporal injury on a
cohabitant in exchange for probation, including six months in county jail. (§ 273.5,
subd. (a).)
       At sentencing, the trial court suspended imposition of the sentence and granted a
three-year term of probation, including six months in county jail as a condition of
probation. Among other conditions of probation, the court ordered, “the Defendant shall


       2
           The factual narrative is based on the probation report.
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not annoy, harass, strike, threaten, sexually assault, batter, stalk, destroy personal
property of or otherwise disturb the peace of the victim.” The court emphasized that this
was a peaceful contact protective order as opposed to no contact protective order, and
cited sections 136.2 and 1203.097 as the basis for the order. The court ordered the
peaceful contact order to last five years. Defense counsel argued that “it would be more
appropriate to have it coterminous with the initial grant of probation,” but the court
impliedly overruled the objection. Additionally, the court ordered, “the Defendant shall
not possess any item under the law during probation that would be considered a deadly or
dangerous weapon.” Defendant objected to this condition as lacking a nexus to the
offense, but the court overruled the objection. The remaining counts were dismissed.
                                        II. DISCUSSION
       A. The Five-Year Peaceful Contact Order
       Defendant contends the trial court lacked authority under sections 136.2 and
1203.097 to impose a peaceful contact order lasting five years. Defendant argues that
although subdivision (a) of section 136.2 authorizes the court to issue a peaceful contact
order, the duration of such an order is limited to the pendency of the criminal action in
which it is issued. Similarly, although section 1203.097 authorizes the court to issue a
peaceful contact order as a condition of probation, defendant argues that the court has no
authority to enforce a condition of probation once the probationary period has expired.
Defendant therefore requests that we limit the duration of the peaceful contact order to
three years.
       The Attorney General concedes the trial court lacks jurisdiction to enforce a
peaceful contact order after the expiration of defendant’s probationary period. However,
the Attorney General contends defendant forfeited the issue by failing to object.
Furthermore, the Attorney General asks that we not specify a three-year limit because the
trial court could modify defendant’s probationary period.


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       We find defendant has not forfeited his claim. First, while defense counsel did not
explicitly use the word “objection” in his argument to the court, counsel argued that the
duration of the peaceful contact order should be coterminous with the probationary
period. This was sufficient to put the issue before the court and the prosecution, and the
court clearly rejected the argument. Furthermore, an unauthorized sentence falls within
the “narrow exception” to the forfeiture rule for sentences issued in excess of jurisdiction.
(In re Sheena K. (2007) 40 Cal.4th 875, 886.)
       As to the merits of the claim, we agree that the trial court may not issue a peaceful
contact order lasting longer than the probationary period. (§ 1203.3; Ex parte Acosta
(1944) 65 Cal.App.2d 63, 64) [“nowhere in the law is the court empowered to impose
conditions that cannot be fulfilled and satisfied within the limit of the period of time fixed
by the court as the term of probation.”].) Nor could the order have been authorized under
section 136.2, subdivision (a), since protective orders issued under that provision are
limited in duration to the pendency of the criminal proceeding. (People v. Stone (2004)
123 Cal.App.4th 153, 159.) However, we agree with the Attorney General that a specific
three-year limit on the order is unjustified, since the trial court could modify the
probationary period. Therefore, we will modify the length of the peaceful contact order
to terminate upon the expiration of defendant’s probationary term, or in five years,
whichever comes first.
       B. The Prohibition on Possession of a Deadly or Dangerous Weapon
              1. Scienter Requirement
       Defendant contends the probation condition prohibiting him from possessing a
deadly or dangerous weapon is vague and overbroad absent a scienter requirement
because he could unknowingly possess a deadly or dangerous weapon. The Attorney
General contends the scienter requirement is already implicit in the condition.
       “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair
warning.’ ” (In re Sheena K., supra, 40 Cal.4th at p. 890.) “A probation condition ‘must
                                              4
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.” (Ibid.) That is, the defendant must know in
advance when he may be in violation of the condition. “[T]he law has no legitimate
interest in punishing an innocent citizen who has no knowledge of the presence of a
[prohibited item].” (People v. Freitas (2009) 179 Cal.App.4th 747, 752 [modifying
probation condition to prohibit knowing possession of a firearm or ammunition].)
Accordingly, courts have consistently ordered modification of probation conditions to
incorporate a scienter requirement where a probationer could unknowingly engage in the
prohibited activity. (In re Victor L. (2010) 182 Cal.App.4th 902, 912-913 [modifying
probation condition to prohibit knowing presence of weapons or ammunition]; In re
Justin S. (2001) 93 Cal.App.4th 811, 816 [modifying prohibition on association with
gang members to prohibit association with known gang members]; In re Kacy S. (1998)
68 Cal.App.4th 704, 713 [modifying probation condition that defendant not associate
with any persons not approved by his probation officer]; People v. Lopez (1998) 66
Cal.App.4th 615, 629 [modifying probation on displaying gang-related indicia].)
       It is possible that defendant could come into possession of an object prohibited
under this probation condition without knowing it. For example, another person could
leave a prohibited object in defendant’s car or house without his knowledge. To enforce
a probation violation for unknowing possession of a prohibited item would violate the
principles above. We acknowledge that probation conditions contain an implicit scienter
requirement. (People v. Patel (2011) 196 Cal.App.4th 956, 960.) However, we believe
that making the requirement explicit provides clearer notice to the parties, courts, and
probation officers. Therefore, we will modify this probation condition to prohibit
knowing possession of a deadly or dangerous weapon.




                                             5
               2. Right to Possess Property
       Defendant also contends the probation condition prohibiting him from possessing
deadly or dangerous weapons is unconstitutionally overbroad in violation of his right to
possess property under the California Constitution. (Cal. Const., art. I, § 1.) He argues
that the condition prohibits him from possessing “numerous items commonly used every
day that are ‘inherently deadly or dangerous’ such as forks and knives at the dinner table,
and countless tools such as screwdrivers, electric drills and hammers.” The Attorney
General contends the condition is not overbroad because it is limited to possession with
the intent to use the object as a weapon.
       A probation condition that imposes limitations upon constitutional rights must be
narrowly tailored to achieve legitimate purposes. (In re Sheena K., supra, 40 Cal.4th at
p. 890; People v. Olguin (2008) 45 Cal.4th 375.) “ ‘ “Where a condition of probation
requires a waiver of constitutional rights, the condition must be narrowly drawn. To the
extent it is overbroad, it is not reasonably related to a compelling state interest in
reformation and rehabilitation and is an unconstitutional restriction on the exercise of
fundamental constitutional rights.” ’ ” (People v. Garcia (1993) 19 Cal.App.4th 97, 102.)
       “[T]he phrase ‘dangerous or deadly weapon’ is clearly established in the law.” (In
re R.P. (2009) 176 Cal.App.4th 562, 568.) “The definition consistently include[s] the
harmful capability of the item and the intent of its user to inflict, or threaten to inflict,
great bodily injury.” (Ibid.) The phrase therefore prohibits “items specifically designed
as weapons, and other items not specifically designed as weapons that the probationer
intended to use to inflict, or threaten to inflict, great bodily injury or death.” (People v.
Moore (2012) 211 Cal.App.4th 1179, 1186 (Moore).) In Moore, the court considered a
challenge based on overbreadth and vagueness grounds to a similar probation condition
prohibiting use or possession of “ ‘any dangerous or deadly weapons, including firearms,
knives, and other concealable weapons.’ ” (Id. at p. 1183.) Because the condition
contains an implicit scienter requirement, the court found this definition sufficiently
                                                6
precise to overcome the defendant’s challenge. “[A] trial court may not revoke Moore’s
probation unless his violation of the weapons condition is knowing and willful.” (Id. at
p. 1189.)
       By the same logic, defendant’s challenge fails here, even though he cites
constitutional grounds as the basis for his challenge. As noted above, the definition of
dangerous or deadly items includes two categories of objects. First, it includes items
specifically designed as weapons, e.g. guns. (Moore, supra, 211 Cal.App.4th at p. 1186.)
The law is clear that defendant, as a felon, has no constitutional right to possess such
objects. (Id. at p. 1187; see People v. Freitas, supra, 179 Cal.App.4th at p. 751.)
Second, the definition includes “items not specifically designed as weapons that the
probationer intended to use to inflict, or threaten to inflict, great bodily injury or death.”
(Moore, supra, 211 Cal.App.4th at p. 1186.) This would only prohibit possession of
items such as forks and knives if defendant intended to use them to inflict, or threaten to
inflict, great bodily injury or death. Thus, defendant is free to use forks and knives at the
dinner table when he intends to eat his dinner with them. We find the inherent limiting
condition described in Moore sufficiently narrows the prohibition to satisfy any tailoring
requirements in accord with defendant’s constitutional rights.
                                      III.    DISPOSITION
       Defendant’s probation conditions are modified as follows: The peaceful contact
order shall terminate upon the expiration of defendant’s probationary period, or in five
years after its issuance, whichever comes first. The probation condition prohibiting
possession of any item that would be considered a deadly or dangerous weapon under the
law is modified to prohibit knowing possession of any item that would be




                                               7
considered a deadly or dangerous weapon under the law. As modified, the judgment is
affirmed.




                                _______________________________
                                Márquez, J.




      WE CONCUR:




      _____________________________________
       Rushing, P. J.




      ______________________________________
       Premo, J.




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