Filed 11/6/13 In re H.V. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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


IN RE H.V., a Person Coming Under the                                H039634
Juvenile Court Law.                                                 (Monterey County
                                                                     Super. Ct. No. J35398)


THE PEOPLE,

         Plaintiff and Respondent,

         v.

H.V.,

         Defendant and Appellant.


                                              I. INTRODUCTION
         The minor, H.V., appeals from the juvenile court’s May 1, 2013 dispositional
order declaring him a ward of the court and committing him to the county juvenile ranch
following the minor’s admissions that he committed conspiracy to commit robbery
(Pen. Code, § 211)1 and attempted robbery (§§ 664, 211).
         On appeal, the minor challenges a condition of probation that prohibits him from
contact with the victim or the victim’s family and requires him to stay at least 100 yards
away from the victim and the victim’s residence, vehicle, school, and placement of



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             All further statutory references are to the Penal Code unless otherwise indicated.
employment. For reasons that we will explain, we will modify the probation condition to
include an explicit knowledge requirement. As so modified, we will affirm the juvenile
court’s dispositional order.

                               II. FACTUAL BACKGROUND
       According to the probation report, on December 26, 2012, the minor was involved
in the robbery of the victim, L. The incident began when L. (age 16) was approached
near a skating rink by three other teenagers, including the minor (age 17), another minor,
R.R. (age 17), and 18-year-old John Avery. R.R. told L. to give him $10 and when L.
replied that he did not have $10, the minor and the others walked away. L. heard the
minor urging R.R. to approach him again.
       Next, L. was surrounded by the teenagers (the minor, R.R. and Avery). R.R. and
Avery searched L.’s pockets and Avery took L.’s cell phone. When L. told R.R. that he
had the ability to track the cell phone, R.R. punched L. in the face. L. ran to his residence
and informed his father of the incident.
       L.’s father became involved after he and L. located the minor, Avery, and R.R.
When asked about the whereabouts of L.’s cell phone, Avery denied that he had it. L’s
father saw that R.R. was holding his own cell phone and grabbed it. R.R. recovered his
cell phone by removing L.’s cell phone from his pocket and and handing it to L.’s father
in exchange for his cell phone. R.R. and L.’s father then began pushing each other. In
the ensuing altercation, L. punched R.R. in the head and Avery punched L. approximately
seven times in the back. L. fell and hit his head on a fountain. After L.’s father pulled
Avery away from L., the minor, R.R., and Avery fled from the scene.
       Police officers located the minor and R.R. They did not comply with the officers’
command to stop and get on the ground. Although the minor pulled away from the police
officer who had grabbed him and attempted to place him in handcuffs, the officer was




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eventually able to arrest him. L. positively identified the minor and R.R. as the persons
who had robbed him.
                          III. PROCEDURAL BACKGROUND

         In March 2013 a petition was filed under Welfare and Institutions Code
section 602, subdivision (a) alleging that the minor had committed robbery (§ 211;
count 1) and misdemeanor resisting, delaying, or obstructing a peace officer (§ 148,
subd. (a)(1); count 2). On April 10, 2013, the petition was amended to include
conspiracy to commit robbery (§§ 182, subd. (a)(1), 211; count 3) and attempted robbery
(§§ 664, 211; count 4).
         During the proceedings held on April 10, 2013, the minor admitted the allegations
of counts 3 and 4 in the petition and counts 1 and 2 were dismissed. On May 1, 2013, the
juvenile court’s dispositional order declared the minor a ward of the court and placed him
in the custody of his probation officer for 412 days, including a credit of 93 days in
juvenile hall for time served and a commitment of 319 days to the county juvenile ranch.
         The dispositional order also includes several probation conditions. At issue in the
present case is probation condition No. 11: “You are not to have direct or indirect
contact with victim [L.] or anyone known to you to be a member of the victim’s family.
Stay at least 100 yards away from the victim, victim’s residence, vehicle, school, and
place of employment.”
                                     IV. DISCUSSION
         On appeal, the minor contends that the probation condition No. 11 is
unconstitutionally vague and should be modified to contain an explicit knowledge
requirement. The minor did not challenge the probation condition in the proceedings
below.
         Our Supreme Court has determined that the forfeiture rule does not apply when a
probation condition is challenged as unconstitutionally vague or overbroad on its face and


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the claim can be resolved on appeal as a pure question of law without reference to the
sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.); see also
People v. Leon (2010) 181 Cal.App.4th 943, 949 (Leon).) In this case, the minor’s
arguments on appeal present pure questions of law without reference to the sentencing
record and therefore we will consider the substance of those arguments.
       A. Legal Principles Regarding Probation Conditions
       “The California Legislature has given trial courts broad discretion to devise
appropriate conditions of probation, so long as they are intended to promote the
‘reformation and rehabilitation’ of the probationer. (. . . § 1203.1, subd. (j).)” (In re
Luis F. (2009) 177 Cal.App.4th 176, 188.) “The court may impose and require any and
all reasonable conditions that it may determine fitting and proper to the end that justice
may be done and the reformation and rehabilitation of the ward enhanced.” (Welf. &
Inst. Code, § 730, subd. (b).)
       However, “[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.) In Sheena K., the
California Supreme Court considered a probation condition that ordered the defendant
not to associate with anyone “ ‘disapproved of by probation.’ ” (Ibid.) The court found
that “in the absence of an express requirement of knowledge,” the probation condition
was unconstitutionally vague. (Id. at p. 891.)
       A similar result was reached in Leon where the challenged probation condition
ordered: “ ‘No association with gang members.’ ” (Leon, supra, 181 Cal.App.4th at
p. 949.) This court found the probation condition constitutionally defective because it
“lack[ed] an explicit knowledge requirement.” (Id. at p. 950.) Without the knowledge
qualification, the condition rendered the defendant “vulnerable to criminal punishment
for ‘associating with persons not known to him to be gang members.’ [Citation.]” (Ibid.)

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Therefore, this court ordered the probation condition modified to read as follows: “ ‘You
are not to associate with any person you know to be or the probation officer informs you
is a member of a criminal street gang.’ ” (Ibid., fn. omitted.)
       B. Analysis
       The minor challenges probation condition No. 11 on the ground that the condition
is so vague that it violates the due process clauses of the federal and California
constitutions (U.S. Const., 5th & 14th Amends.; Cal. Const., art I, § 15.) He explains that
he could violate probation condition No. 11 “without having any knowledge whatsoever
that he is doing so,” since there is nothing in the record to indicate that he is acquainted
with L. or knows where L. works, resides, and goes to school, or what kind of vehicle L.
drives. The minor therefore requests that probation condition No. 11 “be modified to
require that [he] not knowingly come within 100 yards of [L.’s] vehicle, residence, or
place of employment.”
       The People believe that the requested modification is unnecessary since a
knowledge requirement is, in their view, implicit in probation condition No. 11.
However, the People do not object to the modification. They request that probation
condition No. 11 be modified to read as follows: “You are not knowingly to have direct
or indirect contact with the victim or anyone known to you to be a member of the
victim’s family. Do not knowingly come within 100 yards of the victim, victim’s
residence, vehicle, school, and place of employment.”
       “Given ‘the rule that probation conditions that implicate constitutional rights must
be narrowly drawn, and the importance of constitutional rights,’ the knowledge
requirement in probation conditions ‘should not be left to implication.’ [Citation.]”
(Leon, supra, 181 Cal.App.4th at p. 950.) Absent an explicit knowledge requirement,
probation condition No. 11 is constitutionally defective because the minor is vulnerable
to punishment for unknowing violations of the condition. (Cf., e.g. In re Justin S. (2001)
93 Cal.App.4th 811, 816.)

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       We will therefore order that probation condition No. 11 be modified to read as
follows: “You are not to knowingly have direct or indirect contact with victim [L.] or
anyone known to you to be a member of the victim’s family. Do not knowingly come
within 100 yards of the victim, victim’s residence, vehicle, school, and place of
employment.”
                                   V. DISPOSITION
       The dispositional order of May 1, 2013, is ordered modified as follows. Probation
condition No. 11 shall read: “You are not to knowingly have direct or indirect contact
with victim [L.] or anyone known to you to be a member of the victim’s family. Do not
knowingly come within 100 yards of the victim, victim’s residence, vehicle, school, and
place of employment.” As so modified, the order is affirmed.




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                                    ___________________________________________
                                    BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MÁRQUEZ, J.

Grover, J., Concurring
       I write separately to state my agreement with the Attorney General that the
probation condition challenged here need not be modified because it contains an implicit
knowledge requirement.
       It is well established that an individual will not be subject to criminal sanctions
without proof of a mental state corresponding to the prohibited conduct. As the
California Supreme Court has explained, “the requirement that, for a criminal conviction,
the prosecution prove some form of guilty intent, knowledge, or criminal negligence is of
such long standing and so fundamental to our criminal law that penal statutes will often
be construed to contain such an element despite their failure expressly to state it.
‘Generally, “ ‘[t]he existence of a mens rea is the rule of, rather than the exception to, the
principles of Anglo-American criminal jurisprudence.’ . . . [Citation.] In other words,
there must be a union of act and wrongful intent, or criminal negligence. (Pen. Code,
§ 20; [citation].)’ ” (In re Jorge M. (2000) 23 Cal.4th 866, 872, quoting People v. Coria
(1999) 21 Cal.4th 868, 876.) “[A]t least where the penalties imposed are substantial,
[Penal Code] section 20 can fairly be said to establish a presumption against criminal
liability without mental fault or negligence, rebuttable only by compelling evidence of
legislative intent to dispense with mens rea entirely.” (In re Jorge M., supra, at p. 879.)
       As the Attorney General points out, and the majority acknowledges, it is similarly
established that a probation violation must be willful to justify revocation of probation.
(People v. Zaring (1992) 8 Cal.App.4th 362, 379 [probationer 22 minutes late to court];
People v. Galvan (2007) 155 Cal.App.4th 978, 982 [failure to report due to deportation].)
As explained in People v. Cervantes (2009) 175 Cal.App.4th 291, 295 (Cervantes), in
which a probationer failed to appear for a review hearing due to being in the custody of
immigration officials: “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.’ [Citing People v. Galvan, supra.]” Noncompliance is not
willful when it is attributable to circumstances beyond a probationer’s control (Cervantes,
supra, at p. 295), just as nonpayment is not willful unless a probationer has the ability to
pay (People v. Quiroz (2011) 199 Cal.App.4th 1123, 1129; Pen. Code, § 1203.2,
subd. (a)).
       That general view notwithstanding, I am able to concur in the modification here
because the challenged condition in this juvenile case implicates association as did the
condition reviewed in In re Sheena K. (2007) 40 Cal.4th 875, cited by the majority.



                                           ______________________________________
                                           Grover, J.




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