Filed 10/31/14 P. v. Ugarte CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E060087

v.                                                                       (Super.Ct.No. RIF1301643)

LOUIE ANTHONY UGARTE,                                                    OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.

Affirmed as modified.

         Alissa Bjerkhoel, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Collette C.

Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.




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       A jury found defendant and appellant Louie Anthony Ugarte guilty of one count of

burglary (Pen. Code, § 459; count 2).1 Defendant thereafter admitted that he had served a

prior prison term (Pen. Code, § 667.5, subd. (b)). Defendant was sentenced to a three-

year split sentence in county jail, with 16 months jail and 20 months mandatory

supervision on various terms and conditions. On appeal, defendant challenges two of his

mandatory supervision conditions. He claims that the conditions prohibiting him from

frequenting places where alcoholic beverages are sold (term No. 5) and from possessing

an incendiary device (term No. 17) are unconstitutionally vague and overbroad. We will

modify defendant’s challenged mandatory supervision conditions, but otherwise affirm

the judgment.

                                             I

                              FACTUAL BACKGROUND

       On February 25, 2013, defendant and another man entered a Rite Aid store, went

directly to the beer cooler, and then walked out of the store, each carrying a 30-pack of

beer. The incident was recorded on the store’s surveillance video.

       Daniel Thomas, a Rite Aid asset protection officer, chased after defendant and told

him to drop the beer. Thomas and Anthony Barone, a uniformed security officer,

followed defendant to an apartment complex behind the store. While Thomas stayed

outside the complex to speak with police, Barone followed defendant inside the gated

       1  The jury was deadlocked on a robbery (Pen. Code, § 211) count (count 1) and
another count of burglary (count 3). The trial court later dismissed these counts in the
interest of justice.


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complex. After making a few turns within the apartment complex, defendant set the beer

down and walked toward Barone. Defendant’s hands were at his side and clenched in

fists and he appeared angry. Barone retreated. Defendant repeatedly told Barone, “ ‘Go

home. Go home. I’m gonna fuck you up.’ ” Once Barone was outside the apartment

complex gate, defendant stared at him for a few seconds and then turned around and went

back inside the complex.

                                            II

                                      DISCUSSION

       As part of defendant’s split sentence, the trial court imposed mandatory

supervision terms including condition Nos. 5 and 17. Condition No. 5 states: “Do not

consume alcoholic beverages; do not frequent places where it is the main item of sale.”

Condition No. 17, in relevant part, states: “Do not knowingly own, possess, have under

your control or immediate access to any . . . incendiary device.” Defendant claims that

these terms and conditions must either be stricken or modified because they are

unconstitutionally vague.

       In 2011, the Criminal Justice Realignment Act changed the paradigm for the

incarceration and post-conviction supervision of persons convicted of certain felony

offenses. (Stats. 2011, ch. 15, § 1; see People v. Cruz (2012) 207 Cal.App.4th 664, 668

(Cruz).) Unlike parole, a felon participating in postrelease community supervision

cannot be returned to prison for violation of his or her postrelease supervision agreement.

(Pen. Code, § 3458.) Nor does the Department of Corrections and Rehabilitation have



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jurisdiction over persons subject to postrelease community supervision. (Pen Code,

§ 3457.) Rather, the legislation “shifted responsibility for housing and supervising

certain felons from the state to the individual counties. Thus, . . . once probation has

been denied, felons who are eligible to be sentenced under realignment will serve their

terms of imprisonment in local custody rather than state prison.” (Cruz, supra, at p. 671,

fn. omitted; see Pen. Code, § 1170, subd. (h).)

       A trial court sentencing a defendant to county jail under Penal Code section 1170,

subdivision (h), “has an alternative to a straight commitment to jail.” (Cruz, supra, 207

Cal.App.4th at p. 671.) The court “can impose a hybrid sentence in which it suspends

execution ‘of a concluding portion of the term’ and sets terms and conditions for

mandatory supervision by the county probation officer. [Citation.]” (Ibid.) Specifically,

Penal Code section 1170, subdivision (h)(5)(B)(i), provides that the court may commit a

defendant to county jail “[f]or a term as determined in accordance with the applicable

sentencing law, but suspend execution of a concluding portion of the term selected in the

court’s discretion, during which time the defendant shall be supervised by the county

probation officer in accordance with the terms, conditions, and procedures generally

applicable to persons placed on probation, for the remaining unserved portion of the

sentence imposed by the court. The period of supervision shall be mandatory, and may

not be earlier terminated except by court order.” (Italics added.) This latter “portion of a

defendant’s sentenced term during which time he or she is supervised by the county




                                              4
probation officer” is now known as “mandatory supervision.” (Pen. Code, § 1170,

subd. (h)(5)(B)(ii).)

       We note that although supervised release is to be monitored by county probation

officers “in accordance with the terms, conditions, and procedures generally applicable to

persons placed on probation” (Pen. Code, § 1170, subd. (h)(5)(B)(i)), “this does not mean

placing a defendant on mandatory supervision is the equivalent of granting probation or

giving a conditional sentence. Indeed, [Penal Code] section 1170, subdivision (h), comes

into play only after probation has been denied.” (People v. Fandinola (2013) 221

Cal.App.4th 1415, 1422 (Fandinola), citing Cruz, supra, 207 Cal.App.4th at p. 671

[“ ‘once probation has been denied, felons who are eligible to be sentenced under

realignment will serve their terms of imprisonment in local custody rather than state

prison’ ”].) Thus, a county jail commitment followed by mandatory supervision imposed

under Penal Code section 1170, subdivision (h), is akin to a state prison commitment and

not a grant of probation or a conditional sentence. (People v. Martinez (2014) 226

Cal.App.4th 759, 763 [Fourth Dist., Div. Two] (Martinez), quoting Fandinola, supra,

at p. 1422.) Therefore, “ ‘mandatory supervision is more similar to parole than

probation.’ ” (Martinez, supra, at p. 763.)

       The fundamental goals of parole are “ ‘to help individuals reintegrate into society

as constructive individuals’ [citation], ‘ “to end criminal careers through the rehabilitation

of those convicted of crime” ’ [citation] and to [help them] become self-supporting.” (In

re Stevens (2004) 119 Cal.App.4th 1228, 1233) In furtherance of these goals, “[t]he state



                                              5
may impose any condition reasonably related to parole supervision.” (Ibid.) These

conditions “must be reasonably related to the compelling state interest of fostering a law-

abiding lifestyle in the parolee.” (Id. at p. 1234.)

       The validity and reasonableness of parole conditions is analyzed under the same

standard as that developed for probation conditions. (In re Hudson (2006) 143

Cal.App.4th 1, 9; In re Stevens, supra, 119 Cal.App.4th at p. 1233 [“[t]he criteria for

assessing the constitutionality of conditions of probation also applies to conditions of

parole”].) “A condition of [parole] will not be held invalid unless it ‘(1) has no

relationship to the crime of which the offender was convicted, (2) relates to conduct

which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably

related to future criminality . . . .’ [Citation.] Conversely, a condition of [parole] which

requires or forbids conduct which is not itself criminal is valid if that conduct is

reasonably related to the crime of which the defendant was convicted or to future

criminality.” (People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted, superseded on

another ground by Proposition 8 as stated in People v. Wheeler (1992) 4 Cal.4th 284,

290-292; see People v. Olguin (2008) 45 Cal.4th 375, 379-380.)

       In general, the trial courts are given broad discretion in fashioning terms of

supervised release, in order to foster the reformation and rehabilitation of the offender,

while protecting public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120; People

v. Leon (2010) 181 Cal.App.4th 943, 949 (Leon).) “The court’s discretion, however, is

not unlimited.” (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355.) “[P]robation



                                               6
conditions may be challenged on the grounds of unconstitutional vagueness and

overbreadth. [Citation.]” (People v. Freitas (2009) 179 Cal.App.4th 747, 750.) We

apply the abuse of discretion standard of review when analyzing a trial court’s decision to

impose a particular term of probation. (Leon, at p. 949.) However, whether a term of

probation is unconstitutionally vague or overbroad presents a question of law, which we

review de novo. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.) The failure to object

below that a condition is unconstitutionally overbroad or vague does not forfeit review of

the issue on appeal. (Ibid.; People v. Quiroz (2011) 199 Cal.App.4th 1123, 1127 [Fourth

Dist., Div. Two] (Quiroz).) We will therefore consider defendant’s challenge to the

constitutionality of condition Nos. 5 and 17.

       A.     Condition No. 5

       Condition No. 5 of defendant’s mandatory supervision states, “Do not consume

alcoholic beverages; do not frequent places where it is the main item of sale.” Defendant

contends that the foregoing condition is unconstitutionally vague and overbroad because

it does not include a knowledge requirement and because the term “frequent” is unclear.

Defendant therefore requests the condition be modified. The People support defendant’s

contention. We agree.

       “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.) However, case law has drawn a distinction



                                                7
with respect to conditions reinforcing penal statutes that forbid possession of certain

items that are already subject to restriction. For example, penal statutes prohibiting

possession of firearms, ammunition and deadly weapons contain implicit knowledge

elements. Supervisory conditions reinforcing these statutes by prohibiting possession of

weapons “contain[] those implicit scienter requirements, and due process does not require

making them explicit.” (People v. Rodriguez (2013) 222 Cal.App.4th 578, 591

(Rodriguez); see People v. Kim (2011) 193 Cal.App.4th 836, 843-847 (Kim); People v.

Moore (2012) 211 Cal.App.4th 1179, 1183-1189.) Kim explained: “[W]here a probation

condition implements statutory provisions that apply to the probationer independent of

the condition and does not infringe on a constitutional right, it is not necessary to include

in the condition an express scienter requirement that is necessarily implied in the statute.”

(Kim, supra, 193 Cal.App.4th at p. 843.)

       However, there is no such implicit knowledge requirement with respect to the

alcohol-related condition. (See Rodriguez, supra, 222 Cal.App.4th at pp. 593-594.)

Absent this condition, it would not be illegal for defendant to consume an alcoholic

beverage in his home or a bar. This condition does not arise from or purport to

implement any statutory prohibition. Therefore, it is not possible to derive an implicit

knowledge element by interpreting parallel statutory language. (Rodriguez, supra, at

pp. 591, 593-594.) Consequently, we conclude that the alcohol-related condition must be

modified to add a knowledge requirement.




                                              8
       We also agree with defendant that the word “frequent” renders the condition

unconstitutionally vague, because “it is both obscure and has multiple meanings.” (Leon,

supra, 181 Cal.App.4th at p. 952; In re H.C. (2009) 175 Cal.App.4th 1067, 1072.)

Accordingly, as agreed by the parties, we will order condition No. 5 be modified to read

as follows: “Do not knowingly consume alcoholic beverages; do not visit or remain in

any specific location where you know, or a probation officer informs you, alcohol is the

main or chief item of sale.”

       B.     Condition No. 17

       Condition No. 17 of defendant’s mandatory supervision reads, “Do not knowingly

own, possess, have under your control or immediate access to any firearm, deadly

weapon, ammunition, or weapon related paraphernalia or incendiary device.” Defendant

argues condition No. 17 is unconstitutionally vague or overbroad because the words

“incendiary device” are left open to multiple interpretations and requests that we strike

that portion or modify the condition to include the definition of incendiary device as

contained in Penal Code section 453.

       The People respond that defendant forfeited the claim the condition is invalid by

failing to object below. We reject this claim because defendant is not challenging the

validity of the condition, but on grounds of unconstitutional vagueness. As previously

stated, the failure to object below that a condition is unconstitutionally overbroad or

vague does not forfeit review of the issue on appeal. (Quiroz, supra, 199 Cal.App.4th at

p. 1127.)



                                             9
       The People further argue that the term “incendiary device” has a specific meaning

in the Penal Code, and therefore the term is not vague or overbroad. We disagree. The

mere existence of a definition in the Penal Code is insufficient to cure an

unconstitutionally vague or broad term. For example, in People v. Lopez (1998) 66

Cal.App.4th 615 (Lopez), the appellate court considered a probation condition that

provided: “ ‘The defendant is not to be involved in any gang activities or associate with

any gang members, nor wear or possess, any item of identified gang clothing, including:

any item of clothing with gang insignia, moniker, color pattern, bandanas, jewelry with

any gang significance, nor shall the defendant display any gang insignia, moniker, or

other markings of gang significance on his/her person or property as may be identified by

Law Enforcement or the Probation Officer.’ ” (Id. at p. 622.) The defendant challenged

the probation condition on the basis that the condition was unconstitutionally vague.

(Id. at p. 623.) The appellate court agreed, modifying the probation condition to include

a definition of “gang.” (Id. at p. 638.) The court noted that though the word “gang”

certainly had “sinister implications,” it also had “considerable benign connotations.”

(Id. at p. 631.)

       To render the term “gang” constitutionally specific, the appellate court modified

the probation condition to incorporate the definition of “gang” contained in Penal Code

section 186.22, subdivisions (e) and (f). (Lopez, supra, 66 Cal.App.4th at p. 634.) So

modified, the probation condition unambiguously notified the probationer about the

conduct required of him, and ameliorated any due process concerns. (Ibid.)



                                             10
       As in Lopez, the term “incendiary device” is suspect to multiple interpretations.

As defendant points out, incendiary devices could include items which both ignite and

fuel fires, such as gasoline, matches, lighters, lighter fluid, fireworks, alcohol,

matchbooks, gas stoves, ovens, fireplaces, camping stoves, and ignitable liquids. We

note that the reasoning applied in Rodriguez, supra, 222 Cal.App.4th 578, and Kim,

supra, 193 Cal.App.4th 836, does not extend to cure a defect with respect to the

vagueness of a condition that lacks a clear definition of one of its key terms, “incendiary

device.” The holdings in Rodriguez and Kim are best understood as imputing a scienter

requirement in a probation condition when the condition references or tracks a statute that

includes an express scienter requirement. This is not the scenario presented in

defendant’s case. Here, the challenged condition does not specifically reference or track

a statute that references a definition of “incendiary device.” Without a clear definition of

what is considered an “incendiary device,” defendant could unknowingly violate the

condition.

       We therefore disagree with the People’s position, and under the same rationale set

forth by the appellate court in Lopez, and as suggested by the People in their alternative

argument,2 we will order the condition modified to include a provision that for the

purposes of the condition the term “incendiary device” means as defined in Penal Code

section 453, subdivisions (a) and (b).

       2  In the alternative, the People assert that assuming the condition is vague as
written, the condition should be modified to refer to the definition of incendiary device
contained in Penal Code section 453.


                                              11
                                             III

                                      DISPOSITION

       Mandatory supervision condition No. 5 is modified to read: “Do not knowingly

consume alcoholic beverages; do not visit or remain in any specific location where you

know, or a probation officer informs you, alcohol is the main or chief item of sale.”

       Mandatory supervision condition No. 17 is modified to read: “Do not knowingly

own, possess, have under your control or immediate access to any firearm, deadly

weapon, ammunition or weapon related paraphernalia or incendiary device as defined in

Penal Code section 453, subdivisions (a) and (b).”

       In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               RAMIREZ
                                                                                        P. J.
We concur:



McKINSTER
                          J.



RICHLI
                          J.




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