Filed 12/11/15 P. v. Noble 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                          H040844 & H040845
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. Nos. C1351206 &
                                                                     C1114402)
             v.

JESSE KENNETH NOBLE,

         Defendant and Appellant.



         Defendant Jesse Kenneth Noble appeals a judgment entered following his plea of
no contest to inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)),
and driving under the influence (Veh. Code, § 23152, subd. (a)).
         On appeal, defendant asserts that two of his probation conditions should be
modified to add a knowledge requirement. Defendant also argues his trial counsel was
ineffective for failing to object to the court’s imposition of probation supervision fees
without first determining his ability to pay the fees pursuant to Penal Code
section 1203.1b.
                                STATEMENT OF THE CASE1
       There are two separate cases underlying this appeal. Case No. C1351206 involves
domestic violence, and case No. C1114402 involves driving under the influence.2
       In case No. C1351206, defendant pleaded no contest to inflicting corporal injury
on a cohabitant (Pen. Code, § 273.5, subd. (a)), and admitted he inflicted great bodily
injury (Pen. Code, § 12022.7, subd. (a)) and committed the crime while out of custody on
bail (Pen. Code, § 12022.1).
       The court suspended imposition of sentence, placed defendant on three years
formal probation, and ordered defendant to serve one year in the county jail. As a
condition of probation, the court ordered that defendant “shall not possess any item that
under the law would be considered a deadly or dangerous weapon,” and “shall not
possess or use illegal drugs or illegal controlled substances or go anywhere he knows
illegal drugs or non-prescribed controlled substances are used or sold.” The court
ordered defendant to pay $878.00 in fines and fees, of which $30.00 was for a probation
supervision fee.
       In case No. C1114402, defendant pleaded no contest to driving while under the
influence (Veh. Code, § 23152, subd. (a)), and admitted that he willfully refused to
submit to a chemical test (Veh. Code, § 23577, subd. (a)) and had a prior drunk driving
conviction.
       The court suspended imposition of sentence, placed defendant on five years
formal probation, and ordered defendant to serve eight months in the county jail,
concurrent with the jail time imposed in the domestic violence case. As a condition of
probation, the court ordered: “The Defendant is not to possess or consume alcohol or

       1
           The underlying facts are omitted because they are not relevant to the issues on
appeal.
       2
           We ordered the two cases consolidated for briefing, argument and disposition.
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illegal controlled substances or knowingly go to places where alcohol is a primary item of
sale.” The court ordered defendant to pay $930.00 in fines and fees, of which $100.00
was for a probation supervision fee.
       A timely notice of appeal was filed in both cases.
                                       DISCUSSION
       On appeal, defendant asserts that his probation conditions should be modified to
include a knowledge requirement. Defendant also argues that the probation supervision
fees were improperly imposed, because the court did not make a determination as to his
ability to pay the fees as required by Penal Code section 1203.1b.
       Probation Conditions
       Defendant challenges two of his probation conditions. In the domestic violence
case, the court ordered that defendant “shall not possess any item that under the law
would be considered a deadly or dangerous weapon.” In the DUI case, the court ordered:
“The Defendant is not to possess or consume alcohol or illegal controlled substances or
knowingly go to places where alcohol is the primary item of sale.” Defendant argues
both conditions are vague, and should be modified to add a knowledge requirement.
       “A probation condition ‘must 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. [Citation.]” (In re
Sheena K. (2007) 40 Cal.4th 875, 890.) “[T]he underpinning of a vagueness challenge is
the due process concept of ‘fair warning.’ (People v. Castenada (2000) 23 Cal.4th 743,
751.) The rule of fair warning consists of ‘the due process concepts of preventing
arbitrary law enforcement and providing adequate notice to potential offenders’ (ibid.),
protections that are ‘embodied in the due process clauses of the federal and California
Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7).’ (Ibid.)” (Ibid.)



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       As to the condition imposed in the domestic violence case, the Attorney General
concedes that as stated, the condition is vague and should be modified to require that
defendant shall not “knowingly possess any item that under the law would be considered
a deadly or dangerous weapon.” We accept the Attorney General’s concession, and
modify the condition accordingly.
       In addition, as to the probation condition in the DUI case, the Attorney General
concedes that the prohibition against the consumption of alcohol is vague and should be
modified to include a knowledge requirement; however, the Attorney General disputes
the necessity of a knowledge requirement for the drug condition.
       We accept the Attorney General’s concession regarding the portion of the
condition that prohibits the consumption of alcohol. With regard to the second half of the
condition that prohibits the consumption of drugs, we find that absent a requirement that
defendant know he is disobeying the condition, he is vulnerable, and unfairly so, to
punishment for unwitting violations of it. (See People v. Lopez (1998) 66 Cal.App.4th
615, 628-629.) Therefore, we also add a knowledge requirement to the portion of the
condition that prohibits the consumption of drugs.
       Probation Supervision Fees
       Defendant argues that the court erred in imposing probation supervision fees in his
two cases, because it did not evaluate and determine his ability to pay the fees as required
under Penal Code section 1203.1b.
       In the domestic violence case, the probation department recommended that the
court impose a fee not to exceed “$110.00” per month. The court imposed a fee of
$30.00 per month. In the DUI case, the probation office also recommended a fee not to
exceed $110.00 per month. The court imposed a fee of $100.00 per month, to run
concurrent to the fees in the domestic violence case. As to the imposition of probation



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supervision fees, the court did not make a determination of defendant’s ability to pay, and
defense counsel did not object.
       Because defendant’s attorney did not object to the imposition of the probation fees
below, under People v. Trujillo (2015) 60 Cal.4th 850 (Trujillo), the issue is waived for
the purpose of appeal. In Trujillo, the Supreme Court found that defense counsel’s
failure to object to the imposition of probation supervision fees in the trial court waived
the issue for appeal. The court stated: “Represented by counsel, defendant made no
objection at sentencing to the amount of probation-related fees imposed or the process, or
lack thereof, by which she was ordered to pay them; nor does the record contain any
indication defendant later raised the question of her ability to pay in the probation
department or the sentencing court. No reason appears why defendant should be
permitted to appeal the sentencing court’s imposition of such fees after having thus
tacitly assented below. (Id. at pp. 858-859.)
       Defendant argues that he suffered ineffective assistance of counsel, because his
trial counsel did not object to the imposition of fees in this case and the issue was
forfeited. In order to establish a claim of ineffective assistance of counsel, a defendant
bears the burden of demonstrating both that counsel’s performance fell below an
objective standard of reasonableness (Strickland v. Washington (1984) 466 U.S. 668,
687-688) and that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” (Id. at p. 694; People v.
Ledesma (2006) 39 Cal.4th 641, 746.) “ ‘ “[If] the record on appeal sheds no light on
why counsel acted or failed to act in the manner challenged [,] . . . unless counsel was
asked for an explanation and failed to provide one, or unless there could simply be no
satisfactory explanation,” the claim on appeal must be rejected.’ ” (People v. Mendoza
Tello (1997) 15 Cal.4th 264, 266.)



                                                5
       Here, defendant asserts that there could have been no tactical reason for his
counsel not to object to the imposition of the probation supervision fees. He argues that
his counsel was aware that he was unable to work for an extensive period of time because
at the time of the sentencing in the DUI case, defendant was already serving a one-year
term in the domestic violence case. Defendant further argues that with this knowledge,
his counsel should have objected to the fees imposed in the domestic violence case, and
should not have agreed to the imposition of concurrent fees in the DUI case.
       The facts cited by defendant do not establish that his counsel’s performance was
deficient for failing to object. “Ability to pay does not necessarily require existing
employment or cash on hand.” (People v. Staley (1992) 10 Cal.App.4th 782, 785.) The
trial court may consider the defendant’s ability to pay in the future. (People v. Hennessey
(1995) 37 Cal.App.4th 1830, 1837.) The record shows that defendant was a trained and
certified sheet metal worker and was employed through the local union, and had plans to
start his own business. Defense counsel and the trial court may have been mindful of this
potential income source at sentencing when considering defendant’s ability to pay the
probation supervision fee. (See People v. Gentry, supra, at pp. 1377-1378; People v.
Frye (1994) 21 Cal.App.4th 1483, 1487.)
       An attorney does not provide deficient performance by failing to make an
objection that counsel determines would be futile or unmeritorious. (See People v. Price
(1991) 1 Cal.4th 324, 387.) Because defense counsel in this case may have reasonably
determined the court would find that his client had the ability to pay the probation
supervision fees, the record on appeal does not support a claim that defense counsel’s
performance was deficient.
       In addition, defendant fails to show prejudice because although his attorney did
not object to the fees, he is not wholly without recourse. (See Trujillo, supra, 60 Cal.4th
at p. 860.) Penal Code section 1203.1b, subdivision (c) authorizes the trial court to hold

                                              6
additional hearings to review a defendant’s ability to pay fees and allows the probationer
to petition the probation officer and the court for such review. (Pen. Code, § 1203.1b,
subds. (c) & (f).)
       Accordingly, we find that defendant did not suffer ineffective assistance of
counsel by his attorney’s failure to object to the imposition of probation supervision fees.
                                       DISPOSITION
       In case No. C1351206 (domestic violence case), the probation condition is
modified to read: “The defendant shall not knowingly possess any item that under the
law would be considered a deadly or dangerous weapon.”
       In case No. C1114402 (DUI case), the probation condition is modified to read:
“The defendant is not to knowingly possess or consume alcohol or illegal controlled
substances or knowingly go to places where alcohol is the primary item of sale.”
       As modified, the judgment is affirmed.




                                             7
                                 ______________________________________
                                            RUSHING, P.J.




I CONCUR:




____________________________________
           MÁRQUEZ, J.




People v. Noble
H040844 & H040845




                                   8
Grover, J., Concurring
        I concur in modifying the probation condition challenged in case No. C1351206
(domestic violence case) to add an express knowledge element with language suggested
by the Attorney General. Respectfully, I note my view that the purpose of the
modification is to ensure defendant’s awareness of the nature of the item possessed. As I
discuss below, the general principle that a probation violation must be shown to be
willful protects defendant from revocation based on unwittingly possessing a prohibited
item.
        I am also able to concur in modifying the probation condition challenged in case
No. C1114402 (DUI case) because there is no practical harm in adding further express
knowledge to that condition, and the Attorney General does not object to such a
modification. That practicality notwithstanding, I write separately to express my view
that modification is not required in the DUI case based on the reasoning of People v.
Rodriguez (2013) 222 Cal.App.4th 578 (Rodriguez) and People v. Cervantes (2009)
175 Cal.App.4th 291 (Cervantes).
        In Rodriguez, a different panel of this court considered whether a condition
prohibiting the use or possession of “alcohol, intoxicants, narcotics, or other controlled
substances without the prescription of a physician” was unconstitutionally vague
(id. at p. 583), and concluded that the generic category of “intoxicants” is susceptible of
different interpretations which “may include common items such as adhesives, bath salts,
mouthwash, and over-the-counter medicines.” (Id. at p. 594.) As a result, we added an
express knowledge element to the Rodriguez condition. But the term “intoxicants” which
necessitated that modification is not present here. As in Rodriguez, I find the term
alcohol by itself “ ‘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 … .’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 890.)

                                              9
       I also find no infirmity with regard to whether a violation would require willful
conduct. Here, the trial court has identified the need for defendant’s express knowledge
in connection with its prohibition on “knowingly go[ing] to places where alcohol is the
primary item of sale.” While there is no harm in modifying the remainder of the
condition to refer also to defendant not “knowingly” possessing or consuming alcohol, I
note the general principle that 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[]’ [Citation.]” (Cervantes, supra, at p. 295). That
principle adequately protects defendant from revocation based on an unwitting violation,
making it unnecessary to add a second express knowledge reference in the DUI
condition.




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                                  ______________________________________
                                  Grover, J.




I CONCUR.



_______________________________
Márquez, J.




People v. Noble
H040844 & H040845

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