Filed 12/11/15 P. v. Zamudio CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067818

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. JCF34398)

JOSEPH ZAMUDIO,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of Imperial County, Ruth Bermudez

Montenegro, Judge. Affirmed as modified and remanded with directions.

         Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Warren J.

Williams, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant Joseph Zamudio pleaded no contest to one felony count of inflicting

corporal injury (Pen. Code, § 273.5, subd. (a)).1 Zamudio was granted three years of

formal probation with imposed conditions, including a criminal protective order barring

any contact with the victim or any member of her family. He contends the protective

order language violates his due process right and First Amendment right of association.

He requests modification of the order to include a knowledge requirement and limitation

of contacts to the victim and her immediate family.

                  FACTUAL AND PROCEDURAL BACKGROUND

       On January 1, 2015, Desiree Tapia was at a party at a friend's home where she

received a text message from her ex-boyfriend, Zamudio. Zamudio was angry that she

attended the party without him and demanded she visit him at his home. She agreed, but

on arrival remained in her car. Zamudio entered the vehicle and sat in the passenger seat.

After a brief verbal altercation, Zamudio struck Tapia five times in her head, eye, and

mouth with a closed fist. They exited the vehicle and Zamudio continued to yell and

shove Tapia until she left. After Tapia returned home, Zamudio continued to send her

texts, threatening suicide unless she agreed to continue their relationship. On January 7,

2015, Zamudio was arrested and admitted the couple had argued but did not remember

inflicting any injury because he was in an alcoholic blackout.

       Zamudio pleaded no contest to one felony count of inflicting corporal injury and

received three years' formal probation. (§ 273.5, subd. (a).) The trial court also ordered a

1      All subsequent statutory references are to the Penal Code unless otherwise
specified.
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52-week anger management program and instituted a criminal protective order barring

Zamudio from contact with the victim, Tapia, or any member of her family. This

included "any communication personally or through a third party and whether verbal,

written, or by non-verbal conduct." The order was to remain in effect for 10 years. At

the time of sentencing, Zamudio did not object to the protective order.

       Zamudio appeals the language of the protective order. He argues "any member of

her family" is unconstitutionally vague and violates his First and Fourteenth Amendment

rights because the language is not limited to individuals he knows to be Tapia's family

members. He seeks to modify the language so that it includes an explicit knowledge

requirement and bars contact only with Tapia's immediate family. The People contend

the protective order conditions have an implied scienter requirement, and in the interest

of public safety the order should not be modified.

                                      DISCUSSION

       Section 1203.097, subdivision (a)(2), requires the trial court to impose a criminal

protective order as a probation condition in domestic violence cases. Zamudio contends

the protective order language barring contact with any member of Tapia's family is

unconstitutional because it is vague and overbroad, violating his right to due process and

freedom of association.

       Where probation is permitted by statute, the trial court is vested with broad

discretion. We review imposition of a probation condition for abuse of discretion.

(People v. Lent (1975) 15 Cal.3d 481, 485-487; People v. Olguin (2008) 45 Cal.4th 375,


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379.) " '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.]' " (Brown v. Superior Court (2002) 101

Cal.App.4th 313, 319.) "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." ' " (People v. Welch (1993) 5 Cal.4th

228, 234.)

       Explicit Knowledge Requirement

       A probation condition may be challenged as unconstitutionally vague, violating

the due process requirement of adequate notice. (In re Sheena K. (2007) 40 Cal.4th 875,

890.) Probation conditions "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." (People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325.) The vagueness

doctrine bars enforcement of a probation condition that " ' "either forbids or requires the

doing of an act in terms so vague that men of common intelligence must necessarily

guess at its meaning and differ as to its application." ' " (People v. Castenada (2000) 23

Cal.4th 743, 751.)

       Zamudio maintains the protective order language in condition No. 7, barring all

contact with "any family member" of Tapia, is unconstitutionally vague because it has no

knowledge requirement. He argues that without a knowledge requirement, he is not


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given fair warning that his conduct violates a condition of probation because he may not

know if an individual is a person related to Tapia. We agree with Zamudio that the word

"family" without an express knowledge requirement is unconstitutionally vague.

       The underpinning of the vagueness challenge is the due process of fair warning,

and the rule of fair warning consists of the due process concepts of preventing arbitrary

law enforcement and providing adequate notice to potential offenders, protections

embodied in the due process clauses of the federal and California Constitutions. (People

v. Castenada, supra, 23 Cal.4th at p. 751.) In In re Sheena K., the court required a

knowledge element and determined it should be explicit. (In re Sheena K., supra, 40

Cal.4th at p. 892; see People v. Kim (2011) 193 Cal.App.4th 836, 843 [finding

"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."].) If a no-contact condition does not contain a

knowledge requirement, a probationer may not know who the disapproved persons are.

(See Sheena K., at p. 892; see also People v. Lopez (1998) 66 Cal.App.4th 615, 629;

People v. Garcia (1993) 19 Cal.App.4th 97, 102.) Here, the condition lacks an explicit

knowledge requirement and the trial court's minute order does not provide clarification.

(See In re Byron B. (2004) 119 Cal.App.4th 1013, 1015; People v. King (1968) 267

Cal.App.2d 814, 825-826 [probation condition was not vague because the trial court gave

a detailed explanation of the condition and the defendant's required conduct to avoid

probation revocation.].)


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        The People contend the probation condition has an implied scienter requirement,

as held in People v. Patel (2011) 196 Cal.App.4th 956. However, in Patel, the court

expressed its frustration with having to continuously revisit the express scienter

requirement in probation orders and instead noted that since there is a substantial body of

case law that establishes a "probationer cannot be punished for presence, possession,

association, or other actions absent proof of scienter" (id. at p. 960), it would no longer

entertain the issue. (Id. at pp. 960-961.) A number of courts have declined to follow this

rationale.2 (See People v. Hall (2015) 236 Cal.App.4th 1124, 1131; People v. Pirali

(2013) 217 Cal.App.4th 1341, 1351; People v. Moses (2011) 199 Cal.App.4th 374, 380-

381.)

        The People also rely on People v. Rodriguez (2013) 222 Cal.App.4th 578 and

People v. Moore (2012) 211 Cal.App.4th 1179 for an implied scienter proposition. These

cases are distinguishable because each involved a probation condition that barred the

possession of a firearm and the condition replicated a statute with an implied scienter

requirement. (Rodriguez, at p. 583; Moore, at p. 1183.) Furthermore, in People v.

Moore, the court explicitly differentiated between knowledge of possession of a readily

identifiable thing from knowledge of association or contact with persons, stating "[w]here

a probation condition prohibits association with certain categories of persons, presence in

certain types of areas, or possession of items that are not easily amendable to precise


2      Whether a no-contact probation condition must be modified to explicitly include a
knowledge requirement is currently pending review by the California Supreme Court. (In
re A.S. (2014) 227 Cal.App.4th 400, review granted Sept. 24, 2014, S220280.)
                                              6
definition, 'an express knowledge requirement is reasonable and necessary.' " (Moore, at

p. 1185.)

        Condition Is Not Overbroad with an Explicit Knowledge Requirement

        Zamudio argues the unqualified term "family" is undefined and thus is

unconstitutionally overbroad, violating his right to association because it bars contact

with any member of Tapia's family. We agree, in part.

        Probation is privilege, not a right. (In re York (1995) 9 Cal.4th 1133, 1150.)

Because probation conditions foster rehabilitation and protect public safety, they may

infringe on the constitutional rights of the probationer, who is "not entitled to the same

degree of constitutional protection as other citizens." (People v. Peck (1996) 52

Cal.App.4th 351, 362.) If an otherwise valid probation condition impinges on a

constitutional right, it must be carefully tailored, relate to a compelling state interest, and

be necessary to accomplish these goals. (People v. Robinson (1988) 199 Cal.App.3d 816,

818.)

        "The elimination of domestic violence is a compelling state interest. The

Legislature's stated purpose in enacting the Law Enforcement Response to Domestic

Violence Act (§§ 13700–13731; Stats. 1984, ch. 1609, § 3, p. 5713) was 'to address

domestic violence as a serious crime against society and to assure the victims of domestic

violence the maximum protection from abuse which the law and those who enforce the

law can provide.' (Stats. 1984, ch. 1609, § 1, p. 5711.) The Legislature expressed its

intent 'that the official response to cases of domestic violence shall stress the enforcement


                                               7
of the laws to protect the victim and shall communicate the attitude that violent behavior

in the home is criminal behavior and will not be tolerated.' " (People v. Jungers (2005)

127 Cal.App.4th 698, 704.)

       "[R]estriction of the right of association is part of the nature of the criminal

process." (People v. Robinson, supra, 199 Cal.App.3d at p. 818.) Under section

1203.097, subdivision (a)(2), the Legislature mandated that in domestic violence cases,

the court impose a criminal protective order to ensure the protection of victims. We

agree that, without an explicit knowledge requirement, the probation condition suffers

constitutional overbreadth because it prohibits Zamudio from associating with persons

not known to him to be members of Tapia's family. However, the state's compelling

interest in protecting domestic violence victims and their family members justifies the

restriction on Zamudio's right to initiate any contact with Tapia and her family. By

modifying the probation order to include an explicit knowledge requirement, the

condition is sufficiently narrowly drawn to surmount an overbreadth challenge. (See

People v. Lopez, supra, 66 Cal.App.4th at p. 629; People v. Garcia, supra, 19

Cal.App.4th at p. 102.) If Zamudio does not violate the protective order unless he knows

the person contacted is related to the victim (i.e., a family member), then his overbreadth

argument requiring the limitation to immediate family members is unnecessary.

                                       DISPOSITION

       This matter is remanded to the trial court with directions to modify the criminal

protective order issued under section 1203.097, subdivision (a)(2), to include an express


                                              8
knowledge requirement—barring contact with all persons known to Zamudio to be

members of Tapia's family. The court shall prepare an amended abstract of the judgment

reflecting the modification and forward the amended abstract to the Department of

Corrections and Rehabilitation. In all other respects, the judgment is affirmed.




                                                                          McDONALD, J.

WE CONCUR:


BENKE, Acting P. J.


NARES, J.




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