Filed 12/9/13 P. v. Williams CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039187
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1117755)

         v.

STEVEN WILLIAMS,

         Defendant and Appellant.



         Steven Williams pleaded no contest to a felony violation of former Penal Code
section 245, subdivision (a)(1), assault by means of force likely to produce great bodily
injury. The incident apparently occurred outside a San Jose club or bar. The trial court
granted probation on specified terms and conditions. On appeal, defendant Williams
challenges only the following probation condition: "You shall not have any contact with
[the named victim]."
         Defendant Williams argues that the probation condition is unconstitutional on its
face because it lacks an express knowledge requirement. Defendant suggests that he
might not recognize the victim and unknowingly have contact with the victim by, for




                                                             1
example, accidently bumping into the victim on the street.1 He also hypothesizes that the
victim might seek contact with him.
       The People do not agree that a knowledge requirement must be added. They also
urge this court to adopt the approach taken by the Third District Court of Appeal in
People v. Patel (2011) 196 Cal.App.4th 956. They suggest that, like the Third District,
this District should automatically imply a knowledge requirement in every probation
condition and, thereby, eliminate the need for explicit modification. In Patel, the
appellate court announced that henceforth it would "construe every probation condition
proscribing a probationer's presence, possession, association, or similar action to require
the action be undertaken knowingly" and it would "no longer be necessary to seek a
modification of a probation order that fails to expressly include such a scienter
requirement." (Id. at pp. 960-961, fn. omitted.)
       We find it unnecessary to expressly add a knowledge requirement to the
challenged probation condition or to imply such a 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. (People v. Reinertson (1986) 178 Cal.App.3d at
pp. 324-325 . . . .)" (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.

1
        Defendant does not question the use of the word "contact," which presumably
includes any type of communication directed at the victim and physical touching. (See
New Oxford American Dictionary (3d ed. 2011)
<http://www.oxfordreference.com/view/10.1093/acref/9780195392883.001.0001/m_en_
us1235578?rskey=eQ7xnR&result=6 > [as of Sept. 29, 2013].)
                                              2
Const., Amends. V, XIV; Cal. Const., art. I, § 7).' (Ibid.) The vagueness doctrine ' "bars
enforcement of 'a statute which 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.' " [Citations.]' (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th
1090, 1115 . . . (Acuna).) A vague law 'not only fails to provide adequate notice to those
who must observe its strictures, but also "impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the
attendant dangers of arbitrary and discriminatory application." [Citation.]' (Id. at p. 1116
. . . .) In deciding the adequacy of any notice afforded those bound by a legal restriction,
we are guided by the principles that 'abstract legal commands must be applied in a
specific context,' and that, although not admitting of 'mathematical certainty,' the
language used must have ' "reasonable specificity." ' (Id. at pp. 1116-1117. . . , italics in
original.)" (Sheena K., supra, 40 Cal.4th at p. 890.)
       In Sheena K., supra, 40 Cal.4th 875, a probation condition prohibiting association
with "anyone disapproved of by probation" was challenged on vagueness grounds. (Id. at
pp. 878, 889.) The court observed that "the probation condition did not notify defendant
in advance with whom she might not associate through any reference to persons whom
defendant knew to be disapproved of by her probation officer." (Id. at pp. 891-892.) The
Supreme Court determined that the probation condition was unconstitutionally vague "in
the absence of an express requirement of knowledge." (Id. at p. 891.)
       The Supreme Court approved the appellate court's modification of the condition
"to require that defendant refrain from associating with anyone whom she knew was
disapproved of by her probation officer" (id. at p. 880). (Id. at pp. 891-892.) It found
that the addition of the "qualification that defendant have knowledge of who was
disapproved of by her probation officer" "secur[ed] the constitutional validity of the
probation condition." (Id. at p. 892.) The court further stated: "In the interest of
forestalling future claims identical to defendant's based upon the same language, we
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suggest that form probation orders be modified so that such a restriction explicitly directs
the probationer not to associate with anyone 'known to be disapproved of' by a probation
officer or other person having authority over the minor." (Id. at p. 892.)
       In the present case, one of the People's arguments is that it is unnecessary to add a
knowledge requirement to defendant's probation condition because it prohibits him from
contacting a specific individual, not a class of people. We think this distinction is
dispositive.
       The probation condition at issue in this case does not suffer from the same
deficiency addressed in Sheena K. The challenged "no contact" condition does not
describe a general, prohibited class of people (e.g. persons who are disapproved by a
probation officer or gang members). A prohibited class might include, unbeknownst to
the probationer, a particular person as a member and, therefore, the probationer might
lack notice that he was required to avoid contact with that person. In contrast, in this
case, the probation condition specifically names the one victim with whom defendant
must have no contact.
       Defendant asserts that the victim was a stranger to him and suggests that "quite a
lot of contact between the two might occur without [defendant] ever realizing" that the
other person was the victim.2 We do not consider the underlying facts in a facial
constitutional challenge to a probation condition. (See In re Sheena K., supra, 40 Cal.4th
at pp. 885-889.) Further, the reasonableness of the condition3 and its constitutional

2
        Defendant was present at the preliminary hearing at which the victim testified. At
the plea hearing, it was understood that defendant was a resident of Ohio and he would be
returning to that state and living there during the probationary period. It is unclear
whether, under the circumstances, it is possible that defendant might not recognize the
named victim in the future or they might have an accidental encounter.
3
        "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.] Conversely, a condition of probation which requires
or forbids conduct which is not itself criminal is valid if that conduct is reasonably related
                                              4
adequacy with reference to the facts are not issues preserved for review absent a timely
and specific objection at the time of sentencing. (People v. Welch (1993) 5 Cal.4th 228,
237; In re Sheena K., supra, 40 Cal.4th at pp.881-883, 889.) We reject defendant's
argument that the probation condition does not, on its face, afford him adequate notice of
the person with whom he is prohibited from having contact.
       As to the People's request that we adopt the Third District's approach in Patel, we
again reject it as we have in other cases. The Court of Appeal, Fourth District, Division
Three, declined to follow Patel, stating that "the superior court should revise its standard
probation conditions form to meet constitutional requirements." (People v. Moses (2011)
199 Cal.App.4th 374, 381.) The Court of Appeal, Second District, Division Three, also
concluded that it was more appropriate to modify probation conditions on a case-by-case
basis and did not adopt the Patel approach. (People v. Moore (2012) 211 Cal.App.4th
1179, 1188, fn. 7.) This court has likewise declined to adopt the Patel approach. (See
People v. Pirali (2013) 217 Cal.App.4th 1341, 1351.) It is the superior court's duty to
fashion appropriate probation conditions and it is our role as an appellate court to review
challenged probation conditions and remedy, if we can, any facial constitutional defect.
This case stands as a good example why separate consideration of each individual case is
the correct approach. Accordingly, we will continue to individually consider probation
conditions challenged on appeal.
                                          DISPOSITION
       The judgment is affirmed.




to the crime of which the defendant was convicted or to future criminality." (People v.
Lent (1975) 15 Cal.3d 481, 486, italics added, fn. omitted.)
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                               ________________________________
                               ELIA, J.


WE CONCUR:




____________________________
RUSHING, P. J.




____________________________
PREMO, J.




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