Filed 4/26/16 P. v. Munoz 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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


THE PEOPLE,                                                          H040873
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS130889C)

             v.

EDUARDO MUNOZ,

         Defendant and Appellant.


                                                I. INTRODUCTION
         After pleading no contest to carrying a .38 revolver in a vehicle (count 1; Pen.
Code, § 25400, subd. (a)(1))1 and actively participating in a Norteño criminal street gang
(count 5; § 186.22, subd. (a)), defendant Eduardo Munoz was placed on three years’
probation subject to a number of terms and conditions.
         On appeal, defendant challenges two terms and one condition, claiming the court
erred in ordering him to pay booking fees without specifying their amount or basis
(which defendant acknowledges is Gov. Code, § 29550.1) and ordering him to pay $864
for the preparation of a probation report and $81 monthly for probation supervision
without considering his ability to pay. Also, conditions requiring defendant to stay away

         1
             Unspecified section references are to the Penal Code.
from the victim “John Doe,” his places of residence, employment, and education, and
vehicles he owns and operates are unconstitutionally vague without requiring defendant’s
knowledge of the victim’s identity, locations, and vehicles. For the reasons stated below,
we will conclude that defendant’s challenges to the booking and probation fees have been
forfeited by his failure to object in the trial court. In this case, we can resolve the
vagueness claim as a matter of law. The probation condition must be modified to ensure
defendant’s knowledge of the victim’s identity, locations, and vehicles. We will affirm
the judgment as modified.
                            II. TRIAL COURT PROCEEDINGS
       A. THE OFFENSES
       During the evening of May 4, 2013, an Hispanic male in his late teens wearing a
white long-sleeved shirt and a black beanie brandished a black handgun at the victim and
asked him if he was afraid. The victim said, “ ‘no,’ ” and the male said he should
probably be afraid. The male was sitting in a police-style white four-door Ford vehicle in
Seaside driven by Ramsal Navarro. As the victim walked away, he heard the four
occupants of the vehicle laughing.2
       Seaside Police Officers responded to this report and, within 10 minutes, stopped a
white four-door Ford Crown Victoria driven by Navarro. Defendant, born in May 1993,
was sitting in the front passenger seat wearing a white long-sleeved shirt. In the rear seat
were William Dominguez and Jose Acosta. All the passengers were on probation.




       2
         Because the charges were resolved without a preliminary hearing, we take the
facts from the probation report.
        It appears from the probation report’s summary of the police report that the victim
identified the driver by name, but the front seat passenger only by appearance.




                                               2
         Some officers recognized the car as the one that had brought Dominguez to the
Monterey Peninsula Community Hospital on April 20, 2013 with a gunshot wound to his
leg. Navarro and defendant were in the car at the hospital.
         A search of the vehicle on May 4 revealed a black beanie on the floor board just
beneath the front passenger’s seat and, in the glove compartment, a loaded black
semiautomatic nine-millimeter handgun and a loaded .38 six-shot revolver. On the rear
window area were a red baseball cap and red tennis shoes for a toddler. In the side
pocket of the driver’s door were brass knuckles. Three 32-ounce bottles of beer were in
the car, two almost empty and one half-full.
         Navarro admitted carrying brass knuckles for his protection. In police interviews,
all the occupants denied knowledge of the guns in the car except for Dominguez, who
admitted touching the revolver and knowing it was loaded. Navarro, defendant, and
Dominguez told the police they were traveling to Salinas so Navarro could buy tennis
shoes.
         Navarro has several tattoos consistent with Norteño gang membership. Among
other tattoos, defendant displayed “a depiction of the grim reaper, a seahorse tattoo on his
left arm, a nautical star compass on his left inner forearm, a skeleton figure holding a
double barrel firearm with a bandolier around it on his calf, and the phrase ‘Seafanero’ on
his back.” Defendant denied being a gang member.
         The victim was initially reluctant to provide any information to the police due to
fear of retaliation, but eventually did provide the police with the information summarized
above. The victim expressed safety concerns for himself and his family. The probation
officer was unable to speak with the victim as “[t]he identities of the victims in this case
were not disclosed to the Probation Department in the crime reports submitted for
review.”
         A report by the Peninsula Regional Violence and Narcotics Team documented
defendant’s gang history. On April 2, 2009, he was arrested for a curfew violation along

                                               3
with a known Norteño. On November 21, 2011, defendant was wearing “gang related
attire” in the company of Navarro, Acosta, and another male. Defendant made
threatening statements to officers who were investigating a brandishing report. He was
arrested and convicted of misdemeanor resisting arrest (§ 148, subd. (a)(1)) and placed on
probation for three years.
       On May 8, 2013, “MUNOZ@SEAFANERO,” a Twitter account associated with
defendant, posted the following messages.“ ‘haha we got caught slippin.’ ” “ ‘Just another
day in my neighborhood with the same as niggas up to no good.’ ” “ ‘[N]ever leave the
house without my hammer bruh even if a nigga out on bail.’ ” “ We spite the facts of life
over protunes we out on bail for hammers cuz we toke too.’ ” The probation officer
recognized “hammer” to be slang for a gun. Defendant apparently also retweeted
messages from two known Norteños.
       On October 3, 2013, defendant was in a large group of males, several of whom
were wearing “gang related attire.” Some were known Seaside Norteños.
       B. CHARGES AND PLEAS
       A complaint filed in February 2014 charged: on May 4, 2013, defendant, Navarro,
and Dominguez carried a .38 revolver that was loaded (count 3; § 25850, subd. (a)) and
concealed in vehicle (count 1; § 25400, subd. (a)(1)); Navarro and Dominguez carried a
nine millimeter handgun that was loaded (count 4) and concealed in a vehicle (count 2);
each codefendant was actively participating in a Norteño criminal street gang (count 5;
§ 186.22, subd. (a)); defendant committed “an assault on JOHN DOE with a firearm …”
(count 7; § 245, subd. (a)(2)) and criminally threatened “JOHN DOE” with great bodily
injury (count 8; § 422, subd. (a)).3 Each count except the active gang participation was



       3
           The complaint inexplicably omitted a count 6.




                                             4
alleged to have been committed in association with and for the benefit of a Norteño
criminal street gang. (§ 186.22, subd. (b)(a)(A).)
       A preliminary hearing originally scheduled for February 14 was rescheduled for
February 28. On February 28, 2014, defendant agreed to plead no contest to counts 1 and
5 on condition that he be placed on felony probation. He initialed and signed a three-
page written waiver of rights and plea of no contest to carrying a firearm concealed in a
vehicle and actively participating in a criminal street gang. He stipulated there was a
factual basis for his plea in a specific report by the Seaside Police Department.4 He
agreed to waive any challenge to any pre-plea order by appeal or writ. Defendant did not
initial a section entitled “Harvey Waiver” stating, “The sentencing judge may consider
the entire factual background of the case, including any unfiled, dismissed, or stricken
charges or allegations or cases when granting probation, ordering restitution, or imposing
sentence.” After the court advised defendant of his rights, defendant entered no contest
pleas. The court referred the case to probation for preparation of a presentence report.
       C. SENTENCING
       The probation report noted that codefendant Navarro was granted probation after
he admitted unlawful possession of ammunition (§ 30305, subd. (a)(1)) for the benefit of
a criminal street gang, while codefendant Dominguez was awaiting trial. Defendant had
declined to speak with the probation officer.
       The probation report recommended granting probation with 29 separate conditions
and making other orders that were not probation conditions. As relevant to this appeal,
the report proposed the following conditions.
       “13. Not annoy, molest, attack, strike, threaten, harass, stalk, sexually assault,
batter, or disturb the peace of John Doe.

       4
           This police report does not appear in the record on appeal.




                                                5
       “14. Have no direct or indirect contact with the victim, including contact by
telephone, writing, computer, or through another person[.][5]
       “15. Stay away at least 100 yards from the victim, the victim’s residence, the
victim’s place of employment, and any vehicle the victim owns or operates.
       [¶] . . . [¶]
       “29. You shall contact the Monterey County Revenue Division (located at 168
West Alisal St., 1st Floor, Salinas, CA 93901-2680) within three days, or if in custody,
within three days of release, and make arrangements to pay all fines, fees, and victim
restitution and pay as directed by the Revenue Division.”
       The report also proposed: “Defendant shall pay, in accordance with his/her ability
to pay, the criminal justice administration fee incurred in defendant’s arrest and booking
in accordance with section 29550.1/29550.2 Government Code.” “PROBATION
SERVICE FEES: The defendant is ordered to pay $864.00 for the cost of preparation of
the probation report plus $81.00 per month as the cost of supervised probation in
accordance with his/her ability to pay. The defendant is ordered to provide the probation
officer with financial information for evaluation of his/her ability to pay and is ordered to
pay the amount probation determines he/she can afford.”
       At sentencing on April 2, 2014, defendant objected to some of the probation
report’s recommendations. As relevant to this appeal, counsel stated: “With respect to
terms 13 and 14, the problem is that Mr. Munoz didn’t plead to any offenses involving
this particular individual. What he pled to was he pled to basically possessing a gun in a
vehicle, and he also pled to being a member of a street gang. But there was no Harvey



       5
         On the typed recommendation, this sentence ended “except in compliance with
any order of the Family Law Court or Dependency Court.” These words were lined out
by the court at sentencing.




                                              6
Waiver to any of the other counts. [¶] Additionally, I think subsequent police
investigation with respect to contact where the complaining witness denied the original
police report [sic]. I don’t believe that that’s appropriate.”
       Defendant did not object to the vagueness of any condition. Defendant strongly
argued for no more than 180 days in jail. The prosecutor did not specifically respond
regarding conditions 13 and 14, though the prosecutor stated it would involve more work
to obtain Harvey waivers if defense counsel was going to rely on their absence.
       In response to questions by the court, defendant said that he was 20 years old and
lived with his sister. He was paid for working every day of the week in his father’s
landscaping business. He had a four-year-old daughter who lived with her mother, not
him.
       The court suspended imposition of sentence and placed defendant on three years’
probation. Among the probation conditions were that defendant serve 365 days in jail
and register as a gang member. “Do not annoy, molest, attack, strike, threaten, harass,
stalk, sexually assault, batter or disturb the peace of the person you know to be John Doe.
Have no direct or indirect contact with the person you know to be John Doe, including
contact by telephone, writing, computer or through another person. Stay at least 100
yards away from John Doe’s person, residence, place of employment, any vehicle he
owns or operates and any school he attends.”
       “You’re to contact the Monterey County Revenue Division within three days of
your release from custody to make arrangements to pay all fines and fees, which can be
paid in installments. [¶] . . . [¶] The following orders are not conditions of probation,
subject to a hearing if necessary: [¶] . . . [¶] You’re to pay any booking fees. You’re to
pay $864 for the cost of the probation, plus $81 a month as the cost of supervised
probation.” There was no objection to the fees and costs.
       On April 3, 2014, defendant filed a notice of appeal challenging post-plea matters.



                                               7
       On April 15, 2014, the sentencing judge signed the minute order for the April 2
sentencing hearing. Without numbering probation conditions, the order modified the
wording to mostly conform to the original probation recommendations. “You shall
contact the Monterey County Revenue Division (located at 168 West Alisal St., 1st Floor,
Salinas, CA 93901-2680) within three days, or if in custody, within three days of release,
and make arrangements to pay all fines, fees, and victim restitution and pay as directed
by the Revenue Division. [¶] . . . [¶] Not annoy, molest, attack, strike, threaten, harass,
stalk, sexually assault, batter, or disturb the peace of John Doe. [¶] Have no direct or
indirect contact with the victim, including contact by telephone, writing, computer, or
through another person. [¶] Stay away at least 100 yards from the victim, the victim’s
residence, the victim’s place of employment, schools, and any vehicle the victim owns or
operates.”
       The minute order also provided: “Defendant shall pay, in accordance with his/her
ability to pay, the criminal justice administration fee incurred in defendant’s arrest and
booking in accordance with section 29550.1/29550.2 Government Code.
[¶] PROBATION SERVICE FEES: The defendant is ordered to pay $864.00 for the
cost of preparation of the probation report plus $81.00 per month as the cost of
supervised probation in accordance with his/her ability to pay. The defendant is ordered
to provide the probation officer with financial information for evaluation of his/her ability
to pay and is ordered to pay the amount probation determines he/she can afford.”
       While the court did not orally dismiss the other counts and enhancements at
sentencing, they were dismissed in the minute order.
                                      III. ANALYSIS
       A. WHICH PROBATION CONDITIONS APPLY?
       What this court said in People v. Rodriguez (2013) 222 Cal.App.4th 578, 586
(Rodriguez), is equally true of this appellate record. “Frequently, as here, we encounter
discrepancies in how the probation conditions imposed are stated in the reporters’ versus

                                              8
clerks’ transcripts. In this case, there are unexplained major and minor differences
between the conditions proposed in the probation report and adopted by the trial court
and the conditions in the signed minute order. When an irreconcilable conflict exists
between the transcripts of the court reporter and the court clerk, the modern rule is not
automatic deference to the reporter’s transcript, but rather adoption of the transcript due
more credence under all the surrounding circumstances.” (People v. Smith (1983) 33
Cal.3d 596, 599, fn. omitted; People v. Harrison (2005) 35 Cal.4th 208, 226; People v.
Pirali (2013) 217 Cal.App.4th 1341, 1346 (Pirali).)6
       Defendant in this case has noted discrepancies between the oral ruling and the
signed minute order and wrongly assumes that the oral order is automatically controlling.
(See Pirali, supra, 217 Cal.App.4th 1341, 1346.) The Attorney General cites both
versions of the conditions as applicable. That is a formula for ambiguity.
       As this court reiterated in People v. Pirali, supra, 217 Cal.App.4th 1341,
“probation conditions ‘need not be spelled out in great detail in court as long as the
defendant knows what they are; to require recital in court is unnecessary in view of the
fact the probation conditions are spelled out in detail on the probation order . . . .’ ” (Id.
at p. 1364, quoting People v. Thrash (1978) 80 Cal.App.3d 898, 901-902.) A probation
officer is more likely to hand a probationer a copy of a written minute order reflecting
probation conditions than pages excerpted from a reporter’s transcript of the sentencing
hearing. A judge who has a practice of routinely signing minute orders including the
terms and conditions of probation has an opportunity to clarify the court’s intent and
avoid misstatements.




       6
        This court also recently noted the modern rule in People v. Contreras (2015)
237 Cal.App.4th 868.




                                               9
       In this case, the minute order went into much more detail concerning the fees for
booking and probation supervision, making each dependent on defendant’s ability to pay,
directing defendant to provide financial information to the probation officer, and even
providing the address of Monterey County’s Revenue Division. As it appears that the
minute order was intended to clarify the oral order, we will refer to its statement of the
challenged conditions.
       B. BOOKING AND PROBATION FEES
1. Booking Fees
       At sentencing, defendant did not object when the court stated, “subject to a
hearing if necessary: [¶] . . . [¶] You’re to pay any booking fees.” On appeal, defendant
objects for the first time to that order and to the minute order provision, “Defendant shall
pay, in accordance with his/her ability to pay, the criminal justice administration fee
incurred in defendant’s arrest and booking in accordance with section 29550.1/29550.2
Government Code.” He contends that the court should have specified the basis for and
amount of the fee. The Attorney General contends defendant has forfeited these claims
by not making them in the trial court.
       Government Code sections 29550 through 29550.2 authorize a kind of “ ‘user’
fee” (People v. Rivera (1998) 65 Cal.App.4th 705, 711) called a “criminal justice
administration fee” for criminal defendants who are booked into county jail. The
necessity for and amount of the booking fee depends on the nature of the arresting
agency. (People v. McCullough (2013) 56 Cal.4th 589, 592 (McCullough).)
       The parties agree on appeal that the arresting agency was the Seaside Police
Department. If the arresting agency is “a city, special district, school district, community
college district, college, or university . . . ,” the booking county may directly bill that
agency for no more than “one-half of the actual administrative costs.” (Gov. Code,
§ 29550, subd. (a)(1).) Upon the arrestee’s conviction, these governmental entities are
entitled to the judgment of conviction including a mandatory court order for


                                              10
reimbursement from the defendant without regard to the defendant’s ability to pay. (Gov.
Code, § 29550.1.) Reimbursement is also a mandatory probation condition without
regard to the defendant’s ability to pay, as the Attorney General points out. (Ibid.) The
defendant’s ability to pay is relevant under Government Code sections 29550 and
29550.2 when the arresting agency is the county or an unspecified governmental entity
other than a city, special district, school district, community college district, college, or
university.7
       McCullough, supra, 56 Cal.4th 589 concluded, “a defendant who fails to contest
the booking fee when the court imposes it forfeits the right to challenge it on appeal.”
(Id. at p. 591.) The Supreme Court assumed without deciding that Government Code
section 29550.2 was applicable to its facts, as the defendant had asserted. (Id. at p. 592.)
More specifically, the court concluded that by failing to object, the defendant forfeited an
appellate challenge to a finding of the defendant’s “ability to pay a booking fee under
Government Code section 29550.2.” (Id. at p. 599.) In reaching this conclusion, the
court disapproved of this court’s contrary holding in People v. Pacheco (2010) 187



       7
          When the arresting agency is the county or an unspecified governmental entity,
the county may recover its “actual administrative costs” (Gov. Code, §§ 29550, subd. (c);
29550.2, subd. (a)). When the county is the arresting agency, “[a] judgment of
conviction may impose an order” for reimbursement without reference to the defendant’s
ability to pay. (Gov. Code, § 29550, subd. (d)(1), our emphasis.) When an unspecified
governmental entity is the arresting agency, “[i]f the person has the ability to pay, a
judgment of conviction shall contain an order for” reimbursement. (Gov. Code,
§ 29550.2, subd. (a), our emphasis.) If the county is the arresting agency, “[t]he court
shall, as a condition of probation, order the convicted person, based on his or her ability
to pay, to reimburse the county for the” booking fee. (Gov. Code, § 29550, subd. (d)(2),
our emphasis.) When an unspecified governmental entity is the arresting agency, “[t]he
court shall, as a condition of probation, order the convicted person to reimburse the
county for the” booking fee without reference to the defendant’s ability to pay. (Gov.
Code, § 29550.2, subd. (a), our emphasis.)




                                              11
Cal.App.4th 1392 (Pacheco), as defendant acknowledges. (McCullough, supra, at
p. 599.)
       In this appeal, defendant contends the court erred by not specifying the basis or the
amount of the fee, even though defendant recognizes that Government Code section
29550.1 is the statute applicable to arrests by city police. As to the unspecified amount,
this error was readily subject to correction upon a timely objection. We conclude that
this error was forfeited.8
2. Probation Fees
       At sentencing, defendant did not object when the court stated, “subject to a
hearing if necessary: [¶] . . . [¶] . . . You’re to pay $864 for the cost of the probation,
plus $81 a month as the cost of supervised probation.” On appeal, defendant objects for
the first time on appeal to that order and to the minute order provision: “The defendant is
ordered to pay $864.00 for the cost of preparation of the probation report plus $81.00 per
month as the cost of supervised probation in accordance with his/her ability to pay. The
defendant is ordered to provide the probation officer with financial information for
evaluation of his/her ability to pay and is ordered to pay the amount probation determines
he/she can afford.” On appeal he contends that there was neither evidence that he waived
his right to a hearing on his ability to pay these fees nor evidence of his ability to pay, so
the matter should be remanded for a determination of his ability to pay. The Attorney
General contends that defendant has forfeited these objections.




       8
         We recognize that defendant’s notice of appeal was filed 12 days before the
court signed the minute order. While the minute order clarified the conditions and orders
imposed at sentencing, we believe defendant had “a meaningful opportunity to object” to
the essence of the challenged conditions and orders at sentencing. (People v. Scott (1994)
9 Cal.4th 331, 356.)




                                              12
       A defendant who does not agree on how much to pay for his or her supervision on
probation is entitled to a judicial determination after a hearing of what amount, if any, the
defendant is able to pay, including the costs of conducting a presentence investigation
and preparing a report. (§ 1203.1b.)
       On January 12, 2015, the same day defendant’s reply brief was filed in this case,
the California Supreme Court decided the companion cases of People v. Trujillo (2015)
60 Cal.4th 850 (Trujillo) and People v. Aguilar (2015) 60 Cal.4th 862 (Aguilar). The
parties were aware of the issues pending in those cases. Trujillo expanded on the
forfeiture rationale applied in McCullough. In Trujillo, the court considered section
1203.1b and concluded that the forfeiture rule applies “[n]othwithstanding the statute’s
procedural requirements …” and safeguards. (Trujillo, supra, at p. 858.) “In the context
of section 1203.1b, a defendant’s making or failing to make a knowing and intelligent
waiver occurs before the probation officer, off the record and outside the sentencing
court’s presence.” (Ibid..) “[T]he legislative scheme contemplates that the probation
officer’s advisements and defendant’s waiver of the right to a hearing will take place off
the record, in the probation department. (§ 1203.1b, subd. (a).) Thus, unlike cases in
which either statute or case law requires an affirmative showing on the record of the
knowing and intelligent nature of a waiver, in this context defendant’s counsel is in the
best position to determine whether the defendant has knowingly and intelligently waived
the right to a court hearing. It follows that an appellate court is not well positioned to
review this question in the first instance.” (Trujillo, supra, at p. 860.) The court further
disapproved of inconsistent statements in Pacheco, on which defendant here has relied.
(Id. at p. 858, fn. 5.)
       We note, as did Trujillo and Aguilar, that appellate forfeiture of the issue of ability
to pay probation-related fees does not leave a defendant wholly without recourse.
(Trujillo, supra, 60 Cal.4th at p. 860; Aguilar, supra, 60 Cal.4th at p. 868.) The statute
authorizes the trial court to hold additional hearings to review a defendant’s ability to pay

                                              13
(§ 1203.1b, subd. (c)) and authorizes the probationer to petition the probation officer and
the court for such a review (id. at subd. (f)). (Trujillo, supra, at pp. 860–861.) However,
we must conclude that defendant has forfeited an appellate claim that there is insufficient
evidence of his ability to pay the fees ordered.
       C. STAY-AWAY PROBATION CONDITIONS
       The probation report recommended the following conditions, among others:
“[1] Not annoy, molest, attack, strike, threaten, harass, stalk, sexually assault, batter, or
disturb the peace of John Doe. [¶] [2] Have no direct or indirect contact with the victim,
including contact by telephone, writing, computer, or through another person.
[¶] [3] Stay away at least 100 yards from the victim, the victim’s residence, the victim’s
place of employment, and any vehicle the victim owns or operates.[9]” At sentencing,
defendant objected to the first two of these three sentences as involving charged crimes of
which he was not convicted, specifically assaulting “John Doe” with a firearm in count 7
and criminally threatening “John Doe” in count 8. Without a Harvey waiver, the court
imposed each of these conditions by minute order, adding to the third sentence that
defendant should stay at least 100 yards away from the victim’s schools. On appeal,
defendant contends that each condition is unconstitutionally vague.
       Defendant also claims the court’s oral order suffers from the same defect. The
oral order stated: “Do not annoy, molest, attack, strike, threaten, harass, stalk, sexually
assault, batter or disturb the peace of the person you know to be John Doe. Have no
direct or indirect contact with the person you know to be John Doe, including contact by
telephone, writing, computer or through another person. Stay at least 100 yards away
from John Doe’s person, residence, place of employment, any vehicle he owns or


       9
         We have inserted bracketed sentence numbers for easier reference. We continue
to omit from the second sentence what the court deleted at sentencing. (See fn. 5, ante.)




                                              14
operates and any school he attends.” We have italicized the differences between the oral
order and the conditions initially recommended. The minute order returned to the
wording of the recommended conditions, except for adding a reference to the victim’s
schools.
        In Rodriguez, supra, 222 Cal.App.4th 578, this court acknowledged, “a reviewing
court may examine the constitutionality of a probation condition, even if not raised in the
trial court, if the question can be resolved as a matter of law without reference to the
sentencing record.” (Id. at p. 585, citing In re Sheena K. (2007) 40 Cal.4th 875, 888-
889.)
        In Rodriguez, supra, 222 Cal.App.4th 578, cited by the parties, we had occasion to
consider whether a stay-away probation condition was unconstitutionally vague. We
explained at page 594: “It is well established that a probation violation must be willful to
justify revocation of probation. (People v. Zaring (1992) 8 Cal.App.4th 362, 379; People
v. Galvan (2007) 155 Cal.App.4th 978, 982; People v. Cervantes (2009)
175 Cal.App.4th 291, 295; § 1203.2, subd. (a).) It is also established that ‘ . . . Penal
Code section 26 provides that a person is incapable of committing a crime where an act is
performed in ignorance or mistake of fact negating criminal intent; a crime cannot be
committed by mere misfortune or accident’ ([People v. ]Coria [(1999)] 21 Cal.4th 868,
876) and that 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.)
[¶] No reasonable law enforcement officer or judge can expect probationers to know
where their victims are at all times. The challenged condition does not require defendant
to stay away from all locations where the victim might conceivably be. It requires
defendant to remove himself (‘Stay away at least 100 yards . . . .’) when he knows or
learns of a victim’s presence.”
        With this understanding, a court order to stay away from John Doe is perfectly
clear and meaningful so long as there is an individual whom defendant knows by the

                                             15
name or nickname “John Doe.” Similarly, a court order to stay away from “the victim” is
perfectly clear and meaningful when the defendant knows the identity of the person
described as “the victim.” For example, in cases involving domestic violence, cohabitant
injury, embezzlement, or burglary of a neighbor, the victim is likely to be well-known to
the defendant. However, “John Doe” is ordinarily an archetypical pseudonym,
designating an unidentified male.
       Vague probation conditions neither provide “ ‘adequate notice to potential
offenders’ ” nor prevent “ ‘arbitrary law enforcement.’ ” (In re Sheena K., supra, 40
Cal.4th 875, 890.) In Rodriguez, we found a probation condition requiring a probationer
to stay away from “the victim” fatally ambiguous when another probation condition
identified two separate victims of the defendant’s criminal conduct. (Rodriguez, supra,
222 Cal.App.4th 578, 594-595.) It was not clear which victim the court had in mind. We
also noted that the condition did “not sufficiently identify the victims, their addresses, or
vehicles they own or operate” and there was nothing in the circumstances of the crime
indicating that the defendant knew or reasonably should know who owned the car he
damaged or where she lived and worked. (Id. at p. 595.)
       This is not a case like Rodriguez where a probation condition referred to “the
victim” when there were multiple victims. It is clear from the complaint and the
probation report that only one person could be described as a victim of defendant’s
offenses, namely the person he allegedly assaulted and criminally threatened, although he
was not convicted of either offense and there was no Harvey waiver. Contrary to
defendant’s suggestion, it is that individual to whom the challenged conditions referred
interchangeably as “John Doe” or “the victim.”
       The kind of vagueness or overbreadth challenge to a probation condition that can
be presented first on appeal is a “ ‘facial challenge,’ ” which “does not require scrutiny of
individual facts and circumstances” (In re Sheena K., at p. 885) and “is capable of



                                             16
correction without reference to the particular sentencing record developed in the trial
court . . . .” (Id. at p. 887.)
        The Attorney General contends it is a question of fact and not law in this case
whether defendant understood “the individual to whom the court was referring.” The
Attorney General also asserts there is no vagueness about the victim’s identity. “[T]here
was no doubt as to the individual to whom the court was referring. The probation report
included the police report of the incident, and that police report was also expressly the
factual basis for the plea.”
        That is true as far as it goes. The person whom defendant threatened was
identified as “the victim” and “John Doe” in the probation report. However, his identity
was concealed from the probation department and the court by the police report. The
probation report stated, “[t]he identities of the victims in this case were not disclosed to
the Probation Department in the crime reports submitted for review.” From the probation
report’s summary of the police report, it seems the victim identified the driver of the car
by name, but not the passenger who threatened him. It is possible that defendant knew
the victim better than the victim knew him, but there is no evidentiary support for such an
inference.
        The pseudonym “John Doe” was obviously employed here in the complaint to
forestall any retaliation by concealing the victim’s identity from defendant. Intentionally
concealing a crime victim’s identity for this reason is a justifiable approach in describing
a crime in a complaint or information, in a presentence probation report, and even in an
appellate opinion. However, we regard it as a facial defect for a probation condition to
employ an intentionally vague pseudonym unless there is some clarifying reference to the
identity of “John Doe” elsewhere in the court’s directions. There is none in this case.
The court’s oral probation conditions exclusively referred to “John Doe,” not “the
victim.” No other condition clarified this reference. The court did not otherwise explain



                                              17
the phrase to defendant. The probation officer was not directed to provide defendant with
the identity or location of the victim.
       In some cases, an order to avoid contact with “the victim” is not inherently vague.
It may be meaningful to a probationer who already knows the identity or location of the
victim of his or her crime. However, the minute order here used “the victim” as
interchangeable with “John Doe,” suggesting that the phrase “the victim” was also
employed to conceal the victim’s identity from defendant. That is particularly true in this
case, where there is no indication that the court was ever informed of the victim’s
identity.
       Even if we were to conclude that defendant has forfeited an appellate challenge to
the vagueness of “the victim” in the probation conditions in the minute order, we reach a
different conclusion as to “John Doe.” Defendant is entitled to challenge the facial
vagueness of these conditions on appeal.
       Defendant proposes that the condition may be made constitutionally clear by
addition of knowledge elements providing that defendant “ ‘not knowingly come within
100 yards’ of a person who is sufficiently identified for [defendant] to know who he is.”
The Attorney General concedes the conditions “should be modified to require actual or
constructive knowledge” and proposes, “[t]he appropriate modification may be effected
by inserting the words ‘a person [defendant] knows, or reasonably should know, is the
victim’ ” where needed.10 Defendant contends the Attorney General’s modification does
not go far enough.


       10
          We are aware that the California Supreme Court is currently reviewing the
issue: “Must no-contact probation conditions be modified to explicitly include a
knowledge requirement?” (SeeIn re A. S. (2014) 227 Cal.App.4th 400, review granted
Sept. 24, 2014, S220280.) The no contact order in that case specifically named three
people to be avoided by the probationer.




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       In Rodriguez, supra, 222 Cal.App.4th 578, the Attorney General conceded that a
knowledge element should be added to the challenged stay-away condition. We
concluded: “The trial court may modify the condition to require that defendant not
knowingly come within 100 yards of a known or identified victim. It would be even
more clear and informative if the condition actually named the victims and described any
locations and vehicles that defendant is to stay 100 yards from.” (Id. at p. 595.)
       Requiring a probationer to try to learn the victim’s identity and places of
residence, employment, and education by other means (“a person you reasonably should
know is the victim”) would seem to undermine the intent of an order to stay away from
the victim and avoid contact. In this case, where there is a danger of retaliation, the trial
court need not identify the victim and the locations of his residence, employment, and
education in probation conditions. The court may preserve the victim’s anonymity and
still offer protection against harassment by ordering, as the trial court did orally, “Do not
annoy, molest, attack, strike, threaten, harass, stalk, sexually assault, batter or disturb the
peace of the person you know to be John Doe. Have no direct or indirect contact with the
person you know to be John Doe, including contact by telephone, writing, computer or
through another person.” The third condition requires similar modifications not ordered
by the court. As so modified, the conditions are constitutionally clear. Defendant cannot
willfully violate them without proof that he knows the identity of John Doe and his
vehicles and the locations of his residence, workplace, and schools. Unintentional
contact is not a violation.
                                      IV. DISPOSITION
       Three probation conditions are ordered modified as follows. “Do not annoy,
molest, attack, strike, threaten, harass, stalk, sexually assault, batter or disturb the peace
of the person you know to be John Doe. Have no direct or indirect contact with the
person you know to be John Doe, including contact by telephone, writing, computer or
through another person.” “Stay at least 100 yards away from the person you know to be

                                              19
John Doe and where you know he lives, works, and attends school, and any vehicle you
know he owns or operates.” As so modified, the judgment (probation order) is affirmed.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           MÁRQUEZ, J.




People v. Munoz
H040873




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