Filed 1/27/14 P. v. Rocha CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065527
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F11600973)
                   v.

ARTHUR BENITO ROCHA,                                                                     OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. James A.
Kelley, Jr., Judge.
         Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A.
White, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Levy, Acting P.J., Detjen, J. and Franson, J.
       After defendant Arthur Benito Rocha pled no contest to assault with a deadly
weapon (Pen. Code, § 245, subd. (a)(1))1 and possession of methamphetamine (Health &
Saf. Code, § 11377, subd. (a)), the court granted probation and ordered $400 in victim
restitution (§ 1202.4, subd. (f)). On appeal, defendant contends (1) the $400 victim
restitution award is unauthorized and (2) a probation condition is unconstitutionally
vague. We will modify the probation condition and affirm in all other respects.
                                          FACTS2
       On June 13, 2011, at approximately 9:21 p.m., defendant arrived at his 37-year-old
female cousin’s house. He was intoxicated and he told her he needed to talk to someone.
They visited for a few hours and the cousin realized defendant was depressed because his
father had died a few weeks earlier. Defendant left but returned a short time later with
someone named Richard. Defendant sat at the cousin’s kitchen table with a laptop
computer, talking to himself. He was “acting very scary” and he became very upset with
the cousin. He got up and removed the battery from her cell phone. He gave it to
Richard, who left shortly thereafter. Defendant approached the cousin in an aggressive
manner. He picked up a kitchen knife from the counter and broke the blade off. He
approached the cousin, wrapped his fingers around her neck, and put the blade against her
cheek. While he choked her, he said, “Don’t think I won’t do it.” As they struggled, the
cousin received a scratch to her chest.
       Defendant took his fingers off her neck and walked to the garage. She ran to a
neighbor’s house and called the police. As she waited outside her house for the police,
defendant came out and pushed her to the ground. She was able to get up, enter her
house, and lock the door.



1      All statutory references are to the Penal Code unless otherwise noted.
2      The facts are taken from the probation officer’s report.



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       When the police arrived, defendant was sitting in a chair in the middle of the
driveway. His breath smelled strongly of alcohol and he told an officer he had drunk
“quite a bit.” The officer arrested him for public intoxication. A search of his person
produced five baggies of methamphetamine. The cousin told an officer what had
happened and said defendant was no longer welcome at her house.
                                       DISCUSSION
I.     Victim Restitution
       Defendant contends we should strike the $400 victim restitution award because
there was no evidence the victim suffered or claimed an economic loss, and the record
contains no facts that would support an award. He maintains the issue is not forfeited
because the award constituted an unauthorized sentence that could not lawfully be
imposed under any circumstance in this case. He explains that this claim is a legal one
not requiring a review of factual circumstances. We disagree.
       The trial court is required to award restitution to a victim who has suffered
economic loss as a result of the defendant’s conduct. (§ 1202.4, subd. (f).) The
restitution order shall be “sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the defendant’s criminal conduct .…”
(§ 1202.4, subd. (f)(3).) The restitution amount should be “based on the amount of loss
claimed by the victim or victims or any other showing to the court.” (§ 1202.4, subd. (f).)
To comport with basic due process, a defendant must be given notice and the opportunity
to be heard. (Koshak v. Malek (2011) 200 Cal.App.4th 1540, 1547.) Consistent with this
dictate, the victim restitution statutory scheme provides that the defendant has the right to
a restitution hearing “to dispute the determination of the amount of restitution.”
(§ 1202.4, subd. (f)(1).) The statute contemplates that the restitution amount will be
determined at sentencing, unless the amount cannot be ascertained at that time.
(§ 1202.4, subd. (f); see People v. Holmberg (2011) 195 Cal.App.4th 1310, 1319.) The
defendant’s right to notice and a hearing is protected if the amount of restitution claimed

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is set forth in the probation report, and the defendant has an opportunity to challenge the
figures in the probation report at the sentencing hearing. (People v. Cain (2000) 82
Cal.App.4th 81, 86; see People v. Gonzalez (2003) 31 Cal.4th 745, 754-755.)
       Generally, to preserve a restitution issue for appellate review, the defendant must
raise the objection in the trial court. (People v. Gonzalez, supra, 31 Cal.4th at p. 755;
People v. Brasure (2008) 42 Cal.4th 1037, 1074-1075; see People v. McCullough (2013)
56 Cal.4th 589, 591, 594, 599.) However, our Supreme Court has “created a narrow
exception to the [forfeiture] rule for ‘“unauthorized sentences” or sentences entered in
“excess of jurisdiction.”’ [Citation.] Because these sentences ‘could not lawfully be
imposed under any circumstance in the particular case’ [citation], they are reviewable
‘regardless of whether an objection or argument was raised in the trial and/or reviewing
court.’ [Citation.]” (People v. Smith (2001) 24 Cal.4th 849, 852.) The Smith court
deemed “appellate intervention appropriate in these cases because the errors presented
‘pure questions of law’ [citation], and were ‘“clear and correctable” independent of any
factual issues presented by the record at sentencing.’ [Citation.] In other words, obvious
legal errors at sentencing that are correctable without referring to factual findings in the
record or remanding for further findings are not [forfeited].” (People v. Smith, supra, at
p. 852.)
       Here, the probation officer’s report noted that restitution was an issue in this case,
but it also noted that no victim statement or assessment had been made yet: “This matter
has been referred to the Victim Services Unit and an Impact Statement requested.… If a
statement is received prior to the date of sentencing, it will be reviewed and submitted for
the Court’s consideration.” Nevertheless, the report recommended that defendant
“[m]ake restitution as directed by the Probation Officer, Family Support Division, or
Non-Sufficient Funds Unit in the amount of $400 or [in] an amount to be determined
pursuant to Penal Code Section 1202.4[, subdivision ](f).”



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       Before sentencing defendant, the trial court stated it had read and considered the
probation report and asked if there were “any additions or corrections to the report[.]”
Defense counsel mentioned only the prospect of defendant’s leaving the state for
employment. The court granted defendant probation and ordered, among other things,
that he “make restitution as directed by the probation office in the amount of $400 or in
an amount to be determined pursuant to [section] 1202.4[, subdivision ](f) of the
California Penal Code.” Defendant did not object.
       We conclude defendant’s claim that the restitution award was not supported by
proof of the victim’s economic loss is one that was forfeited by his failure to raise the
issue below. According to the record, defendant took the victim’s cell phone battery,
broke her kitchen knife, and scratched her chest. The probation officer concluded
restitution was an issue. The facts, although by no means a claim by the victim for
economic loss, nevertheless represent a type of “showing to the court” that the victim
suffered an economic loss (§ 1202.4, subd. (f)). In determining victim restitution, the
court is entitled to consider a wide variety of information, including the probation report.
(People v. Baumann (1985) 176 Cal.App.3d 67, 81.) A determination of whether the
facts supported the $400 restitution amount is obviously a question of fact, not a clear and
correctable legal question we can answer without resorting to factual considerations or
remanding for further factual findings. Defendant has not shown that the restitution
award was one that could not lawfully be imposed under any circumstance in this
particular case. Accordingly, we conclude defendant has forfeited this claim by not
challenging the $400 amount in the trial court.
II.    Vague Probation Condition
       Defendant also contends the trial court imposed an unconstitutionally vague
probation condition when it advised him not to associate with others who use or possess
dangerous drugs or narcotics without including a knowledge element. The People



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respond that a knowledge element should be construed as an element of every probation
condition. We agree with defendant that a knowledge element is required.
       “In a variety of contexts, beginning with People v. Garcia (1993) 19 Cal.App.4th
97 (Garcia), California appellate courts have found probation conditions to be
unconstitutionally vague or overbroad when they do not require the probationer to have
knowledge of the prohibited conduct or circumstances. In Garcia, a probation condition
prohibiting association with ‘“any felons, ex-felons, users or sellers of narcotics,”’
[citation] was found to impinge on the probationer’s ‘constitutional right of freedom of
association’ and accordingly had to be narrowly drawn [citation]. [This court] rejected
the contention that it was implicit that the condition would only be violated if the
probationer knew of the other person’s status, stating ‘the rule that probation conditions
that implicate constitutional rights must be narrowly drawn, and the importance of
constitutional rights, lead us to the conclusion that this factor should not be left to
implication.’ [Citation.]
       “In People v. Lopez (1998) 66 Cal.App.4th 615 (Lopez), [this court] applied [our]
reasoning from Garcia to a condition stating in part that ‘“[t]he defendant is not to be
involved in any gang activities or associate with any gang members”’ [citation] and
concluded that the association prohibition ‘suffers from constitutionally fatal overbreadth
because it prohibits Lopez from associating with persons not known to him to be gang
members’ [citation]. [This] court ordered the language modified to provide that
‘“Defendant is not to be involved in or associate with any person known to defendant to
be a gang member.”’ [Citation.]” (People v. Kim (2011) 193 Cal.App.4th 836, 843-844,
fn. omitted (Kim).)
       As explained in Kim, supra, 193 Cal.App.4th 836, “In [these] situations, an
express knowledge requirement is reasonable and necessary. The affiliations and past
history of another person may not be readily apparent without some personal familiarity.
Similarly, despite the presence of gang graffiti, sites of gang-related activity may not be

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obvious to all. And it takes some experience or training to identify what colors, symbols,
hand signs, slogans, and clothing are emblematic of various criminal street gangs.” (Id.
at p. 845.)
       The People, however, urge us to adopt the approach taken by the court in People v.
Patel (2011) 196 Cal.App.4th 956 (Patel). In that case, the Third Appellate District
considered whether a probation condition ordering that the defendant not drink alcohol,
possess it, or be in a place where it was the chief item of sale was invalid because it
lacked a knowledge requirement. (Id. at p. 959.) The court expressed its frustration with
the “dismaying regularity” with which “we still must revisit the issue in orders of
probation” that do not include a qualification that the defendant must commit the
proscribed conduct knowingly. (Id. at p. 960.) Noting that “there is now a substantial
uncontradicted body of case law establishing, as a matter of law, that a probationer
cannot be punished for presence, possession, association, or other actions absent proof of
scienter” (ibid.), the Patel court announced that it would “no longer entertain this issue on
appeal” (ibid.) and, moving forward, it would “construe every probation condition
proscribing a probationer’s presence, possession, association, or similar action to require
the action be undertaken knowingly” (ibid.), without modifying a probation order that
“fails to expressly include such a scienter requirement.” (Id. at p. 961, fn. omitted).
       In People v. Moses (2011) 199 Cal.App.4th 374, 381, the Fourth Appellate District
declined to adopt the Patel approach, choosing instead to modify probation conditions to
include a knowledge requirement. The Sixth Appellate District did the same in People v.
Pirali (2013) 217 Cal.App.4th 1341, 1350-1352. We too decline to follow the Third
Appellate District’s approach in Patel. Our Supreme Court faced the issue of the lack of
a knowledge requirement in a probation condition and the remedy it mandated was
unequivocal: “[W]e agree with the Court of Appeal that modification to impose an
explicit knowledge requirement is necessary to render the condition constitutional.” (In
re Sheena K. (2007) 40 Cal.4th 875, 892.) Until our Supreme Court rules differently, we

                                             7.
will follow its lead on this point. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.)
                                     DISPOSITION
       The probation condition forbidding association with persons who use or possess
dangerous drugs or narcotics is modified to state: “Do not knowingly associate with
those who use or possess any dangerous drugs or narcotics.”
       As modified, the judgment is affirmed.




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