Filed 11/6/15 P. v. Chiang 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                         H040838
                                                                   (Santa Clara County
         Plaintiff and Respondent,                                  Super. Ct. No. C1361412)

    v.
SHENG HUANG CHIANG,

         Defendant and Appellant.


         Pursuant to a negotiated disposition appellant Sheng Huang Chiang pleaded no
contest to one count of making a criminal threat (Pen. Code, § 422).1 In exchange for his
no contest plea, appellant was promised a six-month county jail term (top/bottom) and the
dismissal of one count of brandishing a deadly weapon other than a firearm (§ 417,
subd. (a)(1)).
         On March 13, 2014, appellant tried to withdraw his plea, but the court denied the
motion. Thereafter, the court placed appellant on probation for five years on various
terms and conditions and imposed a six-month county jail term. The court told appellant
that he was eligible for all programs, including the electronic monitoring program. After
a discussion off the record, the court noted that the prosecutor had indicated that he was
willing to have the court reduce the jail term from six months to three months.
Accordingly, the court ordered only a three-month jail term.



         1
         All further statutory section references are to the Penal Code unless otherwise
indicated.
       Relevant to this appeal, the probation officer recommended the following
probation conditions: “10. The defendant shall submit to chemical tests as directed by
the Probation Officer. [¶] 11. The defendant shall not possess or use illegal drugs or
illegal controlled substances or go anywhere he/she knows illegal drugs or
non-prescribed controlled substances are used or sold.” The prosecutor stated that he did
not “believe there’s any need for drug testing.” Accordingly, the court ordered that there
“will be no testing . . . .”
       The prosecutor asked for “no contact with the victim and with the address.” The
court responded, “So there will be a no contact order with Ms. Ling . . . Chiang and the
address, we’re going to have you remain at least 100 yards away from the address.”2 The
prosecutor informed the court of Ms. Chiang’s address—1476 Goodfellow Place. The
court reiterated that appellant was to “remain at least 100 yards away from that address.”
Nowhere in the probation officer’s report is there a recommendation that appellant have
no contact with Ms. Chiang.
       Defense counsel objected to the chemical testing requirement and substance abuse
conditions on the ground that she did not “think that’s the issue here.” The court asked
the prosecutor for his input; he responded that he “agree[d].” The court struck
condition No. 10. However, the court went on to order that appellant “not . . . possess or
use illegal drugs or illegal controlled substances or go anywhere you know illegal drugs
or non-prescribed controlled substances are used or sold.” The court asked appellant if
he agreed to the terms and conditions of probation; appellant said that he did not
“completely understand.” The court asked appellant, “What portion of the probation
conditions did [he] not understand?” Appellant asked why he had to submit to the tests

       2
         According to the probation officer’s report, appellant lived with his sister “Ling
Chen” because he suffers from mental illness. On the day of the incident underlying this
case, she telephoned the police. It appears that appellant had threatened her and
brandished a knife. Appellant’s opening brief refers to his sister as Ms. Chiang, as did
the court. We do the same.

                                             2
for drug use; the court told him that he did not have to because his counsel had objected
to the condition and the prosecutor agreed that the condition should not apply. Defense
counsel informed the court that she would go over the conditions with appellant with the
assistance of the interpreter after the court hearing was complete.
       The court asked appellant if he had any other questions about the conditions of his
probation. Appellant said he was not sure about the terms, but wanted to know why he
could not withdraw his “erroneous plea.” The court explained that his motion to
withdraw his plea was based on his claim that he was not advised of his right to a jury
trial and that the interpreter “ ‘[d]id not go over each item in the waiver form word for
word. Rather, the interpreter gave [him] a brief summary only.’ ” The court explained
that the interpreter had “signed the waiver of rights form and represented to the Court that
the form had been translated in the Mandarin Chinese language to [appellant] and that
[he] stated that [he] understood the contents of the form, and then [he] initialled [sic] and
signed the form.” The court went on to say that the court had advised appellant of his
right to a jury trial/court trial and appellant had stated that he understood and gave up the
right. The court explained that it had made a decision on the motion to withdraw the plea
and was not going to change it. The court continued, “The question for you is, do you
understand these terms and conditions of your probation?” An off-the-record discussion
ensued. Back on the record, the court indicated that it was approximately 15 to 20
minutes that the court had been off the bench, and it asked defense counsel if she had had
an opportunity to review appellant’s probation conditions with her client and an
interpreter. Defense counsel confirmed that she had. The court confirmed with appellant
that he had had enough time to go over the conditions of his probation and asked if he
understood “these terms and conditions of probation[.]” Appellant responded,
“Approximately, yes.” The court asked appellant if he accepted the terms and conditions,
he responded, “Yes, your Honor.”



                                              3
       On March 18, 2014, appellant appeared before Judge Manley to report that he had
enrolled in the electronic monitoring program. Judge Manley reiterated that appellant
was to have no contact with “Ling Chiang.” Appellant promised that he would not
“contact her for the rest of [his] life.”
       On appeal, appellant challenges the no-contact order as unconstitutionally vague
and overbroad and condition No. 11—the substance abuse condition on the ground that it
lacks a knowledge requirement and bears no relationship to his past, present or future
criminality.
                                            Discussion
The Applicable Law and Standard of Review
       A defendant’s appellate challenge to a probation condition on reasonableness
grounds is forfeited if it is not raised at the hearing where the condition is imposed.
(People v. Welch (1993) 5 Cal.4th 228, 230.) Sentencing courts have broad discretion to
impose probation conditions regulating conduct that is not itself criminal, but the
conditions “must be ‘reasonably related to the crime of which the defendant was
convicted or to future criminality.’ ” (Id. at pp. 233-234.) “A timely objection allows the
court to modify or delete an allegedly unreasonable condition or to explain why it is
necessary in the particular case.” (Id. at p. 235.)
       On the other hand, an objection based on constitutional grounds (as opposed to
reasonableness grounds), such as an appellant’s claim that the no contact order is vague
and overbroad and that condition No. 11 is unconstitutionally vague because it lacks a
knowledge requirement, is not always forfeited by the failure to raise the objection
below. (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) Such a constitutional
challenge is not forfeited when it presents a “pure question of law.” (Id. at p. 887.) “In
common with a challenge to an unauthorized sentence that is not subject to the rule of
forfeiture, a challenge to a term of probation on the ground of unconstitutional vagueness
or overbreadth that is capable of correction without reference to the particular sentencing

                                                4
record developed in the trial court can be said to present a pure question of law.
Correction on appeal of this type of facial constitutional defect in the relevant probation
condition . . . may ensue from a reviewing court’s unwillingness to ignore ‘correctable
legal error.’ ” (Ibid., italics added.) Our Supreme Court has stressed, however, that
“not . . . ‘all constitutional defects in conditions of probation may be raised for the first
time on appeal, since there may be circumstances that do not present “pure questions of
law that can be resolved without reference to the particular sentencing record developed
in the trial court.” [Citation.] In those circumstances, “[t]raditional objection and waiver
principles encourage development of the record and a proper exercise of discretion in the
trial court.” [Citation.]’ [Citation.] We also emphasize that generally, given a
meaningful opportunity, the probationer should object to a perceived facial constitutional
flaw at the time a probation condition initially is imposed in order to permit the trial court
to consider, and if appropriate in the exercise of its informed judgment, to effect a
correction.” (Id. at p. 889.)
       We review constitutional challenges to probation conditions de novo. (In re
Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) However, as to all other challenges, we
review a trial court’s imposition of a probation condition for an abuse of discretion.
(See People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121 (Carbajal).)
No Contact Order
       Appellant argues that the no-contact order, which requires him to stay away from
Ms. Chiang is unconstitutionally vague and overbroad. Appellant contends that he could
unwittingly violate the condition if he happened to come across her in a public place,
such as a grocery store, a shopping mall, or simply walking down a crowded street. He
asserts that absent a knowledge requirement, this condition imposes liability upon lawful
activity that is constitutionally protected and unrelated to future criminality. Further, he
asserts that requiring him to stay 100 yards away from 1476 Goodfellow Place, his
sister’s residence, for the entire five years he is on probation does not pass constitutional

                                               5
muster. He contends that during that time his sister may change residences making his
presence at that address otherwise lawful and constitutionally protected. Appellant states
that this court should modify the condition to include a knowledge requirement.
Appellant makes no suggestion as to how this court should do this.
       Respondent has no objection to this court’s modifying the no-contact order to
include express knowledge requirements. Respondent suggests that we modify the
no-contact order by requiring that appellant “not knowingly have contact with
Ms. [Chiang], in any manner, including face to face, through letters, electronically, or by
any other medium.” In addition, respondent suggests that we modify the condition to
require that appellant “not knowingly come within 100 yards of Ms. [Chiang]’s
residence, 1476 Goodfellow Place, or any other address to which she moves . . . during
the period of probation.”
       As can be seen, appellant contends that the no-contact order is a condition of his
probation. Appellant is correct in that it was imposed because he was granted probation.
However, at the sentencing hearing, a representative from the electronic monitoring
program informed the court that appellant “needs to be on G.P.S. because of the nature of
his offense . . . .” The court agreed. The representative noted that there was a potential
issue of a stay-away order and that G.P.S. monitoring would help enforce such an order.
It was in response to this that the prosecutor asked for no contact with the victim and the
address of 1476 Goodfellow Place. Only after this did the court go on to impose the
other conditions as outlined in the probation officer’s report. As noted, nowhere in the
probation officer’s report is there a recommendation for a no-contact condition of
probation. Given that this case involved domestic violence, we believe the no-contact
order was imposed under section 1203.097, subd. (a)(2) [criminal court protective order
required in domestic violence cases involving threats].)
       Accordingly, the challenged no-contact order is akin to an “obey all laws”
probation condition, for which a violation of the law must be established by a

                                             6
preponderance of the evidence. (See, e.g., People v. Rodriguez (1990) 51 Cal.3d 437,
442.) Since a violation of a protective order must be “willful and knowing” (§ 166,
subd. (c)(1)), proof of a violation necessarily requires proof that it was knowing and
willful, and therefore any knowledge requirement is implicit.
       As a matter of common sense, a violation of a protective order is much less
susceptible to innocent violation than probation conditions barring possession of stolen
property or association with felons or gang members (which are routinely modified to
require knowledge), because the status of the property or person is not always obvious.
(See People v. Freitas (2009) 179 Cal.App.4th 747, 751 [stolen property]; People v.
Garcia (1993) 19 Cal.App.4th 97, 102 [felons].) In the rare case where a probationer
might innocently find himself in violation of a protective order, it is quite apparent that
the Penal Code requires that the probationer’s conduct be willful and knowing in order to
constitute a violation. The knowledge and wrongful intent requirements are so
manifestly implied that to require they be expressly stated is neither logical nor
necessary. Furthermore, to modify the no-contact order to require that appellant not
“knowingly” come within 100 yards of 1476 Goodfellow Place is an exercise in futility
since appellant used to live with his sister and is fully aware of where 1476 Goodfellow
Place is located.
       As to appellant’s argument that the requirement that he stay 100 yards away from
1476 Goodfellow Place for the entire five years he is on probation does not pass
constitutional muster because during that time his sister may change residences, we will
modify the condition. Accordingly, we modify the no-contact order to state that during
the time appellant is on probation appellant shall not come within 100 yards of
Ms. Chiang’s residence, 1476 Goodfellow Place, while she lives there or any residence to
which she moves.




                                              7
Substance Abuse Condition
         Appellant contends that this court must strike the substance abuse condition,
condition No. 11, entirely. In essence, he asserts that it was the judge’s intent to strike
condition No. 11 at the time the court struck the chemical testing requirement,
condition No. 10. The record belies appellant’s assertion.
         Specifically, the court imposed condition No. 11. Expressly, the court stated,
“you’re not to possess or use illegal drugs or illegal controlled substances or go anywhere
you know illegal drugs or non-prescribed controlled substances are used or sold.” When
the court imposed this condition neither party made any objection.
         We reject appellant’s argument that the court “simply misspoke[].” Although
defense counsel objected to the “chemical tests and substance abuse conditions” and the
prosecutor said “I agree” we note that there are indications in the probation officer’s
report that the court struck only condition Nos. 8 and 10; both conditions have a wavy
line through them. Condition No. 11 does not.
         Alternatively, appellant contends that we should strike the component of
condition No. 11 that bars him from being in places where illegal drugs or non-prescribed
controlled substances are used or sold because it is not reasonably related to him or his
crime.
         As our Supreme Court has explained, “[i]n granting probation, courts have broad
discretion to impose conditions to foster rehabilitation and to protect public safety
pursuant to . . . section 1203.1. [Citations.] ‘The court may impose and require . . .
[such] reasonable conditions[] as it may determine are fitting and proper to the end that
justice may be done, that amends may be made to society for the breach of the law, for
any injury done to any person resulting from that breach, and generally and specifically
for the reformation and rehabilitation of the probationer.’ [Citation.] The trial court’s
discretion, although broad, nevertheless is not without limits: a condition of probation
must serve a purpose specified in the statute. In addition, we have interpreted . . .

                                              8
section 1203.1 to require that probation conditions [that] regulate conduct ‘not itself
criminal’ be ‘reasonably related to the crime of which the defendant was convicted or to
future criminality.’ [Citation.] As with any exercise of discretion, the sentencing court
violates this standard when its determination is arbitrary or capricious or ‘ “ ‘exceeds the
bounds of reason, all of the circumstances being considered.’ ” [Citations.]’ [Citation.]”
(Carbajal, supra, 10 Cal.4th at pp. 1120-1121.)
       “A condition of probation 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.]” (People v. Lent (1975) 15 Cal.3d 481, 486,
fn. omitted, superseded on another ground by Proposition 8 as stated by People v.
Wheeler (1992) 4 Cal.4th 284, 290-295.) “The test is clearly in the conjunctive, that is,
the three factors must all be found to be present in order to invalidate a condition of
probation.” (People v. Balestra (1999) 76 Cal.App.4th 57, 65, fn. 3.)
       As for the part of the condition that requires that appellant not go anywhere he
knows illegal drugs or non-prescribed substances are sold, appellant compares this case
to People v. Brandão (2012) 210 Cal.App.4th 568, 574 (Brandão ), where this court
considered whether a no-gang-contact probation condition was “ reasonably related to a
risk that defendant will reoffend.” The defendant in Brandão pleaded no contest to
possessing a controlled substance, and nothing in the record indicated that the offense
was gang related. (Id. at pp. 570, 576.) However, in Brandão, the probation report stated
that the defendant “had never been involved with any criminal street gangs, nor did he
have any family members who associated with such groups.” (Id. at pp. 570-571.) This
court held that the trial court erred by imposing the challenged condition, because “the
record divulge[d] (1) no ties between defendant and any criminal street gang, (2) no such
ties involving any member of defendant’s family, and (3) no criminal history showing or
strongly suggesting a gang tie.” (Id. at p. 576.)

                                              9
       Certainly, the record supports the conclusion that the part of probation
condition No. 11 that is challenged here—going anywhere appellant knows illegal drugs
or non-prescribed controlled substances are used or sold—has no relationship to the
crime of which appellant was convicted, and it does not relate to conduct that is criminal.
In short, there is no evidence in the record that illegal drugs were related to appellant’s
offenses.
       However, a condition of probation that does not relate to the convicted crime may
still be valid if it is reasonably related to prevent future criminality. (People v. Olguin
(2008) 45 Cal.4th 375, 380.) In order to relate to future criminality, the probation
condition must have some “rational factual basis . . . that defendant may commit a
particular type of crime in the future.” (In re Martinez (1978) 86 Cal.App.3d 577, 583.)
       Respondent points out that the probation report shows that appellant’s sister stated
that appellant “suffers from mental illness and has difficulty determining what is good
and what is bad”; and he “does not think things through.” She described appellant as
“gullible” and stated that although he has never tried any drugs in the past, while he was
in county jail someone convinced him that he needed to try marijuana because it would
“ ‘calm’ him.” She thought that appellant is “now under the belief that marijuana will
help him.” Respondent argues that “[t]he trial court’s intent was clear.” We are not
persuaded.
       There is no support in the record for the conclusion that appellant currently suffers
from drug abuse issues such that allowing him to walk through areas where illegal drugs
are used or sold will somehow contribute to his future criminality. His sister’s concerns
about her brother are entirely too speculative without any evidentiary bases to support a
conclusion that appellant will seek out illegal drugs in the future. As such, the condition
is not a reasonable way to ensure his compliance with the law. Common sense requires
that a statement of a defendant’s relative to a probation officer, without more, cannot be
the sole basis for the imposition of probation conditions. To hold otherwise would

                                              10
subject defendants to potentially unreasonable conditions that are neither “narrowly
drawn” nor “ ‘specifically tailored to the individual probationer.’ ” (People v. Smith
(2007) 152 Cal.App.4th 1245, 1250, quoting In re Babak S. (1993) 18 Cal.App.4th 1077,
1084 (Babak S.); In re Luis F. (2009) 177 Cal.App.4th 176, 189.) We would not expect a
trial court to unwittingly impose probation conditions that impinge on a defendant’s
constitutional right to intrastate travel (See, In re White (1979) 97 Cal.App.3d 141, 148
[the right to intrastate travel, which includes intramunicipal travel, is a basic human right
protected by the United States and California Constitutions as a whole]), solely
predicated on a relative’s unsubstantiated statement to a probation officer that a defendant
is gullible, does not think things through, and thinks that marijuana will help him.
       Probation conditions restricting a probationer’s exercise of his or her constitutional
rights are upheld only if narrowly drawn to serve the important interests of public safety
and rehabilitation, and if they are “specifically tailored to the individual probationer.”
(Babak S., supra, 18 Cal.App.4th at p. 1084.) We cannot say that the condition that
appellant not go anywhere he knows illegal drugs or non-prescribed controlled
substances are used or sold is specifically tailored to appellant. Accordingly, we will
strike that portion of condition No. 11.
       As to the remaining portion of condition No. 11—prohibiting appellant from using
or possessing illegal drugs or illegal controlled substances—appellant contends that it
should contain an explicit knowledge requirement.
       This court considered a similar probation condition in People v. Rodriguez (2013)
222 Cal.App.4th 578 (Rodriguez). The condition under consideration in Rodriguez
required that the defendant “ ‘[n]ot use or possess alcohol, intoxicants, narcotics, or other
controlled substances without the prescription of a physician . . . .’ ” (Id. at p. 592.)
In Rodriguez the defendant asserted that the condition had to be modified to include an
express knowledge requirement. We disagreed, concluding that a knowledge
requirement was “reasonably implicit” in the probation condition. (Id. at p. 593.)

                                              11
We explained that “Division 10 of the Health and Safety Code is the California Uniform
Controlled Substances Act. (Health & Saf. Code, § 11000 et seq.) Case law has
construed these statutes as including implicit knowledge elements. ‘[A]lthough criminal
statutes prohibiting the possession, transportation, or sale of a controlled substance do not
expressly contain an element that the accused be aware of the character of the controlled
substance at issue ([Health & Saf.Code,] §§ 11350-11352, 11357-11360, 11377-11379),
such a requirement has been implied by the courts.’ ” (Ibid.)
       Following the reasoning set forth in Rodriguez, we conclude that with respect to
the condition prohibiting defendant from possessing or using illegal drugs or illegal
controlled substances, what “is implicit is that possession of a controlled substance
involves the mental elements of knowing of its presence and of its nature as a restricted
substance.” (Rodriguez, supra, 222 Cal.App.4th at p. 593.) Therefore, no modification is
necessary. 3
                                        Disposition
       The judgment is modified by striking the probation condition requiring appellant
not to go anywhere he knows illegal drugs or non-prescribed controlled substances are
used or sold. Further, the no-contact order is modified to read that during the time
appellant is on probation appellant shall not come within 100 yards of Ms. Chiang’s
residence, 1476 Goodfellow Place, while she lives there, or any residence to which she
moves. As so modified the judgment is affirmed.




       3
       Appellant acknowledges the holding in Rodriguez but contends that it was
wrongly decided. We decline to reconsider Rodriguez.

                                             12
                                  _________________________________
                                  ELIA, J.


WE CONCUR:




_______________________________
RUSHING, P. J.




_______________________________
PREMO, J.




The People v. Chiang
H040838
