Filed 5/6/15 P. v. Rushing CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E060382

v.                                                                       (Super.Ct.No. FWV1300146)

LISA GAYE RUSHING,                                                       OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson,

Judge. Affirmed as modified.

         C. Matthew Missakian, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Lynne G. McGinnis and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and

Respondent.




                                                             1
       A jury found defendant and appellant Lisa Gaye Rushing guilty of two counts of

commercial burglary (Pen. Code, § 459; counts 1 & 3)1 and two counts of petty theft

with a prior theft-related conviction (§§ 484, subd. (a), 666, subd. (a); counts 2 & 4).

Defendant was sentenced to a total term of three years eight months pursuant to

section 1170, subdivision (h), with one year six months to be served in county jail and

two years two months to be completed on mandatory supervision on various terms and

conditions. On appeal, defendant argues that (1) her conviction on count 3 must be

reversed because a significant mistake was made on the verdict form rendering the jury’s

intention unclear; and (2) two of her conditions of mandatory supervision must be

stricken because they are unconstitutionally overbroad and vague. We modify one of

defendant’s supervision conditions, and reject her remaining contentions and affirm the

judgment.

                                               I

                                FACTUAL BACKGROUND

       On July 27, 2012, Kristen Quattrocchi, the general manager of an ULTA

cosmetics store in Chino, viewed the store’s surveillance video due to a theft that

occurred on July 26, 2012. On the video, an adult woman, later identified as defendant,

and a girl, identified as defendant’s 12-year-old daughter, can be seen walking into the

store, and defendant taking bottles of perfume off a shelf and handing them to her

daughter. Defendant’s daughter then places the perfume bottles into a purse. Defendant

       1   All future statutory references are to the Penal Code unless otherwise stated.


                                              2
and her daughter take about 12 perfume bottles and leave the store without paying for any

of the items.

         On November 9, 2012, Quattrocchi noticed the Christian Dior perfume section of

the ULTA store looked surprisingly empty. She then viewed the store’s surveillance

video from the prior day and saw defendant and her daughter taking perfume bottles off

the shelf and placing them in a bag. From the location of the shelves, Quattrocchi

determined they took Dior J’Adore, Estee Lauder Beautiful, and Estee Lauder Sensuous

perfumes.

         On November 30, 2012, Quattrocchi saw defendant and her daughter in the

fragrance section of the ULTA store. Quattrocchi recognized defendant’s daughter as the

girl in the video based on her distinctive bright pink Hello Kitty purse. Quattrocchi also

recognized defendant as the adult woman in the video. Quattrocchi called the police.

Later, Quattrocchi watched the store’s surveillance video from November 30, and saw

defendant and her daughter walking around the perfume section and taking perfumes

from the Estee Lauder section.

         Law enforcement subsequently arrived and detained defendant and her daughter.

Inside defendant’s purse, an officer found three new, sealed bottles of perfume—one

bottle of Estee Lauder Sensuous and two bottles of Estee Lauder Beautiful. Quattrocchi

confirmed the perfume bottles found in defendant’s purse were taken from the ULTA

store.




                                             3
       The officer also made contact with defendant’s adult daughter, who was waiting in

a car in the parking lot. A search of defendant’s cell phone showed two text messages

between defendant and her adult daughter, in which they discussed an eBay account

defendant maintained and perfumes. The eBay records revealed that defendant sold the

stolen perfumes online for below retail price.

                                             II

                                       DISCUSSION

       A.     Vacate Conviction Due to Unclear Intention

       Defendant contends that her conviction on count 3 for commercial burglary must

be vacated because a significant mistake on the verdict form renders the jury’s intention

unclear. Specifically, defendant states that the verdict form for count 3 “asked the jury to

render a verdict as to the crime of ‘second-degree commercial burglary . . . in violation of

Penal Code Section 484(a),’ ” but section 484, subdivision (a), relates to petty theft, not

burglary. Defendant reasons that the ambiguity must have misled the jury and that “it is

not unmistakably clear the jury intended to find [her] guilty of commercial burglary.”

Defendant believes that since “it is impossible to determine whether the jury actually

reached a verdict on the essential elements of commercial burglary,” the error is

structural and reversal on count 3 is warranted.

       The People respond defendant’s claim is forfeited on appeal because defendant did

not object to the wording of the verdict form. In the alternative, the People maintain the

clerical error here was harmless given the evidence in this case, the language of the



                                              4
information, the language of the other verdict forms, the court’s jury instructions, and the

arguments of counsel. We are inclined to agree with the People.

       “An objection to jury verdict forms is generally deemed waived if not raised in the

trial court.” (People v. Toro (1989) 47 Cal.3d 966, 976, fn. 6, overruled on other grounds

in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3; see People v. Jones (2003) 29

Cal.4th 1229, 1259 [failure to object to assertedly ambiguous verdict form]; People v.

Bolin (1998) 18 Cal.4th 297, 330 (Bolin) [defendant forfeited claim of error related to

verdict form that contained incorrect code section reflecting prior serious felony

conviction on a section 667, subdivision (a) finding and, in any event, the erroneous form

used by the jury to reflect their finding was not prejudicial]; see also People v. Harders

(1962) 201 Cal.App.2d 795, 798-799 [failure of counsel to object to verdict form

identifying charged crime for which guilty verdict was returned by the wrong count

number].) However, a reviewing court may in its discretion consider the challenge when

it raises an issue that implicates the defendant’s constitutional rights and when defense

counsel was arguably ineffective for failing to raise it below. (People v. Abbaszadeh

(2003) 106 Cal.App.4th 642, 649-650; see People v. Osband (1996) 13 Cal.4th 622, 689

[noting that, pursuant to section 1259, a “claim of instructional error may be considered

for [the] first time on appeal if ‘the substantial rights of the defendant were affected’ by

the asserted error”]; People v. Radil (1977) 76 Cal.App.3d 702, 710 [where no objection

is made at trial, “the form of the verdict is to be regarded as immaterial where,




                                              5
considering the form of the information and the plea of the defendant, the intention to

convict of the crime charged is unmistakably expressed”].)

       Here, defendant acknowledges that she did not object to the defect in the

challenged verdict form, but urges the error affected her substantial rights. We disagree.

The defect in the verdict form on count 3 appears to be one of a clerical error. (See

People v. Camacho (2009) 171 Cal.App.4th 1269, 1274 (Camacho); People v. Trotter

(1992) 7 Cal.App.4th 363, 370 (Trotter).) As such, defendant’s claim is forfeited on

appeal.

       But even if we assume that the defect in the challenged verdict form affected her

substantial rights, defendant’s claim fails on its merit. The form of a verdict is

immaterial provided the intention to convict of the crime charged is unmistakably

expressed. (Camacho, supra, 171 Cal.App.4th at pp. 1272-1273; People v. Jones (1997)

58 Cal.App.4th 693, 710 [Fourth Dist., Div. Two].) A verdict must be given “ ‘ “a

reasonable intendment and be construed in light of the issues submitted to the [finder of

fact] and the instructions of the court.” ’ ” (People v. Jones, supra, at p. 710; Camacho,

supra, at p. 1272.) Technical defects or clerical errors in a verdict may be disregarded if

the jury’s intent to convict of a specified offense is unmistakably clear, and the accused’s

substantial rights suffered no prejudice. (Bolin, supra, 18 Cal.4th at p. 331; Camacho,

supra, at p. 1272.) The jury’s intent may be determined with reference to the information

and the court’s instructions to the jury. (People v. Paul (1998) 18 Cal.4th 698, 707.)




                                              6
       In People v. Escarcega (1969) 273 Cal.App.2d 853, the jury verdict form

contained the wrong Penal Code reference, but the jury was instructed on the correct

offense. The Court of Appeal concluded that “[i]n giving effect to the manifest intention

of the jury, the clerical error will be disregarded. [Citation.]” (People v. Escarcega,

supra, at p. 858.)

       We have no difficulty here in determining that the jury intended to find defendant

guilty of second degree commercial burglary and that the reference to section 484,

subdivision (a), was inadvertent. First, the verdict form specifically states that second

degree commercial burglary is the offense of which defendant was found guilty.2

Though the form refers to section 484, subdivision (a), which is petty theft, we think it far

more likely that an inadvertent error will occur with the statute number than with the

offense that is identified by name. The statute number has no meaning to jurors, who

almost certainly consider only the name of the offense.

       Second, the information alleged three counts of second degree commercial

burglary with one occurring on November 30, 2012 (count 1); one occurring on

November 8, 2012 (count 3); and one occurring on July 26, 2012 (count 5). The

information also alleged three counts of petty theft with three prior theft-related

convictions with count 2 alleged to have been committed on November 30, 2012, count 4


       2 Specifically, the challenged verdict form stated, “We, the jury . . . find the
defendant . . . GUILTY of the crime of SECOND-DEGREE COMMERCIAL
BURGLARY on or about November 8, 2012, in violation of Penal Code Section 484(a)
as charged in Count III of the Information.”


                                              7
on November 8, 2012, and count 6 on July 26, 2012. In regard to count 3, the

information specifically alleged that “[o]n or about November 8, 2012 . . . the crime of

SECOND DEGREE COMMERCIAL BURGLARY, in violation of PENAL CODE

SECTION 459, a felony, was committed by [defendant], who did enter a commercial

building occupied by Ulta with the intent to commit larceny and felony.” The

information alleged a single violation of second degree commercial burglary committed

by defendant on November 8, 2012.

       Third, the jury was instructed pursuant to CALCRIM No. 1700 that “The

defendant is charged in Counts 1, 3, and 5 with burglary.” The jury was also instructed

with CALCRIM No. 3515, which specified that “The defendant . . . is charged in Count

III of the Information with the crime of SECOND-DEGREE COMMERCIAL

BURGLARY on or about November 8, 2012, in violation of Penal Code section 459.”

That instruction also informed the jury that on each of the three days in question (July 26,

2012, November 8, 2012, and November 30, 2012), it was alleged that defendant had

committed one count of second degree commercial burglary and one count of petty theft.

That instruction further clarified that the verdict forms would ask the jurors to make the

corresponding findings as to each count.

       Moreover, during argument, the prosecutor informed the jury that “Counts 1, 3,

and 5 are burglary.” The prosecutor also told the jury that burglary is “a little different

than petty theft. It’s about entering, crossing the threshold. Entering the building with

the intent to steal, that’s what a burglary is there for. Petty theft is about the actual taking



                                               8
of the item, okay.” The prosecutor also reminded the jury, referencing the offense of

burglary, “This is November 8th. Cross the threshold, you had intent to steal, it’s over. It

doesn’t matter what happened.” The prosecutor’s argument here was not at all

inconsistent with the jury instructions, which clearly set forth the elements of the charged

offenses. (Trotter, supra, 7 Cal.App.4th at pp. 369-370; see People v. Jones (2003) 29

Cal.4th 1229, 1259 [argument of counsel considered in determining the intent of jury in

rendering guilty verdict using an ambiguous verdict form]; Camacho, supra, 171

Cal.App.4th at p. 1274 [argument of counsel considered in determining the intent of jury

in rendering guilty verdict using an inaccurate verdict form].)

       The evidence is uncontradicted that defendant entered the ULTA store on

November 8, 2012, and stole perfume. The record provided the jury with no rational

basis, by way of argument or evidence, to find defendant guilty of more than one count of

petty theft on November 8, 2012. Rather, the record is unmistakably clear that defendant

committed one count of burglary and one count of petty theft on November 8, 2012. The

jury was not misguided by the erroneous verdict form. The jury asked for no explanation

on the discrepancy between the cited Penal Code section and the description of the

offense in the verdict form, assuming the jury even noticed the discrepancy. Ultimately,

the jury returned a verdict of second degree commercial burglary on count 3 as charged.

In doing so, the jury necessarily found beyond a reasonable doubt that defendant entered

the ULTA store with the intent to steal perfume.




                                             9
       Under these circumstances, the jury’s intent to find defendant committed second

degree commercial burglary is unmistakable. (See Camacho, supra, 171 Cal.App.4th at

pp. 1272-1273; People v. Jones, supra, 58 Cal.App.4th at p. 710.) For the same reasons,

the flaw in the verdict form is harmless beyond a reasonable doubt. (See People v. Jones,

supra, 29 Cal.4th at p. 1260.)

       B.     Mandatory Supervision Conditions

       Defendant also argues that two of her mandatory supervision conditions should be

modified because they are unconstitutionally vague and overbroad and violate her

constitutional rights to travel and due process. The People argue defendant forfeited her

challenge to these conditions because she failed to object at the sentencing hearing and

they are based on an assertion that the conditions are unreasonable. In the alternative, the

People assert that the notice condition and search condition are not overbroad and vague

and do not infringe on her constitutional rights.

       Among other terms and conditions of mandatory supervision, the court included

the following requirements: “Keep the probation officer informed of place of residence

and cohabitants and give written notice to the probation officer twenty-four (24) hours

prior to any changes. Prior to any move provide written authorization to the Post

Office to forward mail to the new address.” (Condition No. 8) “Permit visits and

searches of places of residence by agents of the Probation Dept. and/or law enforcement

for the purpose of ensuring compliance with the terms and conditions of probation; not do

anything to interfere with this requirement, or deter officers from fulfilling this



                                              10
requirement, such as erecting any locked fences/gates that would deny access to

probation officers, or have any animals on the premises that would reasonably deter,

threaten the safety of, or interfere with, officers enforcing this term.” (Condition No. 9)

Defendant did not object to these supervision conditions, and indicated that she had gone

over the terms with her attorney and that she understood all of the terms and conditions of

her supervision.

       As an initial matter, we assess the validity and reasonableness of conditions of

mandatory supervision using the same standard applied to conditions associated with

other forms of supervised release, including probation or parole. (People v. Martinez

(2014) 226 Cal.App.4th 759, 762-764 [Fourth Dist. Div. Two].) The purposes and goals

of both probation and supervised release are comparable: to provide an opportunity for

successful reentry into the community. (§ 1170, subd. (a)(2); see People v. Hackler

(1993) 13 Cal.App.4th 1049, 1058 [“The purpose of probation is rehabilitation.”].)

       In general, trial courts are given broad discretion in fashioning terms of probation

or supervised release, in order to foster the reformation and rehabilitation of the offender,

while protecting public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120; People

v. Urke (2011) 197 Cal.App.4th 766, 774.) Thus, the imposition of a particular condition

of probation or supervised released is subject to review for abuse of that discretion. “As

with any exercise of discretion, the court violates this standard when it imposes a

condition of probation that is arbitrary, capricious or exceeds the bounds of reason under

the circumstances. [Citation.]” (People v. Jungers (2005) 127 Cal.App.4th 698, 702.)



                                             11
However, constitutional challenges are reviewed under a different standard. Whether a

term of probation is unconstitutionally vague or overbroad presents a question of law,

which we review de novo. (In re J.H. (2007) 158 Cal.App.4th 174, 183; In re Shaun R.

(2010) 188 Cal.App.4th 1129, 1143.)

       Where a claim that a probation condition is facially overbroad and violates

fundamental constitutional rights is based on undisputed facts, it may be treated as a pure

question of law which is not forfeited by failure to raise it in the trial court. (In re Sheena

K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.); People v. Welch (1993) 5 Cal.4th 228,

235.) As the court in Sheena K. explained, the doctrine of forfeiture on appeal does not

apply to challenges to probation conditions based on “facial constitutional defects” that

do “not require scrutiny of individual facts and circumstances.” (Sheena K., at pp. 885,

886.) However, the forfeiture doctrine does apply if the objection involves a

discretionary sentencing choice or unreasonable probation conditions “premised upon the

facts and circumstances of the individual case.” (Id. at pp. 885, 888.)

       Here, defendant claims that even though she did not object to the challenged

conditions at sentencing, her vagueness and overbreadth arguments present a facial

constitutional challenge with pure questions of law based on undisputed facts and, thus,

can be properly raised on appeal for the first time. To the extent defendant’s challenges

raise pure questions of law, we will reach the merits of defendant’s claim. We focus only

on the constitutionality of the condition, not whether it is reasonable as applied to

defendant. (See People v. Lent (1975) 15 Cal.3d 481, 486 [test for reasonableness of



                                              12
probation conditions].) By failing to object below, defendant has forfeited all claims

except a challenge “based on the ground the condition is vague or overbroad and thus

facially unconstitutional.” (Sheena K., supra, 40 Cal.4th at p. 878.)

       Trial courts must fashion precise supervision conditions so the probationer knows

what is required. (Sheena K., supra, 40 Cal.4th at p. 890.) A condition is invalid if it is

“ ‘ “ ‘so vague that men of common intelligence must necessarily guess at its meaning

and differ as to its application.’ ” ’ ” (People v. Quiroz (2011) 199 Cal.App.4th 1123,

1128 [Fourth Dist., Div. Two] (Quiroz).) Nor may a court impose overbroad supervision

conditions. Where a condition impinges on a constitutional right, it must be carefully

tailored and reasonably related to the compelling state interest in reformation and

rehabilitation. (Quiroz, supra, at p. 1128; Sheena K., supra, 40 Cal.4th at p. 890.) A

“court may leave to the discretion of the probation officer the specification of the many

details that invariably are necessary to implement the terms of probation. However, the

court’s order cannot be entirely open-ended.” (People v. O’Neil (2008) 165 Cal.App.4th

1351, 1358-1359 (O’Neil) [probation condition forbidding defendant from associating

with all persons designated by his probation officer was “overbroad and permit[ted] an

unconstitutional infringement on defendant’s right of association”].) “If a probation

condition serves to rehabilitate and protect public safety, the condition may ‘impinge

upon a constitutional right otherwise enjoyed by the probationer, who is “not entitled to

the same degree of constitutional protection as other citizens.” ’ ” (O’Neil, supra, 165

Cal.App.4th at p. 1355, quoting People v. Lopez (1998) 66 Cal.App.4th 615, 624.)



                                             13
              1.     Condition No. 8

       Defendant contends that condition No. 8 is overbroad and unduly infringes on her

constitutional right to travel and relocate. She asserts the condition is overbroad because

it requires her “to give notice of events she may not know are about to happen,” such as

“homelessness, instability, and unpredictable housing arrangements,” which “are a fact of

life, especially for many convicts, probationers, parolees, and those under mandatory

supervision.” She claims that she may have to relocate—a constitutionally guaranteed

right to travel—“with little warning, and find it impossible to notify her probation officer

24 hours in advance.” She believes that the residency condition must be modified to

include “or as soon thereafter as is reasonably possible” (italics added) after the

language “24 hours in advance.”

       The People do not specifically address defendant’s concerns but assert that “[a]

probation officer supervising someone like [defendant] must reasonably know where and

with whom she resides.” Relying on People v. Olguin (2008) 45 Cal.4th 375 (Olguin),

the People argue that “[i]f it is permissible to place restrictions on a probationer’s place

of residence, it is certainly permissible to require that she give 24 hours’ notice of any

contemplated changes to her address or her roommates.”

       The People’s reliance on Olguin is misplaced because our Supreme Court in

Olguin did not address the precise issue raised by defendant here. In Olguin, the

Supreme Court reviewed a condition of probation that required the probationer to inform

the probation officer of any pets owned by the probationer and to inform the probation



                                              14
officer within 24 hours of any changes. (Olguin, supra, 45 Cal.4th at p. 380.) The

Supreme Court found that although the condition was not related to the crime the

defendant committed, it was reasonably related to the supervision of defendant and,

therefore, to his rehabilitation and future criminality. The court held, “The condition

requiring notification of the presence of pets is reasonably related to future criminality

because it serves to inform and protect a probation officer charged with supervising a

probationer’s compliance with specific conditions of probation . . . . [T]o ensure that a

probationer complies with the terms of his or her probation and does not reoffend, a

probation officer must be able to properly supervise that probationer. Proper supervision

includes the ability to make unscheduled visits and to conduct unannounced searches of

the probationer’s residence. . . . Therefore, the protection of the probation officer while

performing supervisory duties is reasonably related to the rehabilitation of a probationer

for the purpose of deterring future criminality.” (Id. at p. 381.)

       Here, defendant does not challenge a probation officer’s supervisory duties but the

24-hour notice provision as being overbroad and infringing on her right to travel. We do

see the benefit of the probation officer being informed if defendant’s residence has

changed. Contrary to defendant’s assertions, condition No. 8 as written is not unduly

overbroad and it does not restrict her right to travel. It merely imposes a duty on

defendant to notify her probation officer 24 hours prior to any change in residence.

Defendant’s arguments regarding the 24-hour notice provision relate to reasonableness.

However, because she failed to object to the condition at the sentencing hearing and



                                             15
indicated that she understood her supervision conditions, defendant forfeited her

reasonableness challenge to condition No. 8.

              2.     Condition No. 9

        Defendant also contends condition No. 9 is improperly overbroad and vague

because it prohibits her from doing “anything ‘to interfere’ with searches,” and it is not

clear that “to interfere” requires a deliberate intent. She also argues that the condition

“unreasonably restricts [her] legitimate interest in ensuring the security of herself and her

family,” and that the “ambiguous language” of the condition may bring innocent conduct

subject to violation. She believes the condition should be modified to prohibit her from

knowingly deterring or interfering with probation or police officers.

        As previously noted, “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.]” (Sheena K., supra, 40 Cal.4th at p. 890.) “[T]he underpinning of a

vagueness challenge is the due process concept of ‘fair warning.’ [Citation.] The rule of

fair warning consists of ‘the due process concepts of preventing arbitrary law

enforcement and providing adequate notice to potential offenders’ [citation], protections

that are ‘embodied in the due process clauses of the federal and California Constitutions.

[Citation.]” (Sheena K. at p. 890, quoting People v. Castenada (2000) 23 Cal.4th 743,

751.)




                                             16
       “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.]’ [Citation.]

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.]’ [Citation.] 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.” ’ [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890, italics

omitted.)

       “Proper supervision includes the ability to make unscheduled visits and to conduct

unannounced searches of the probationer’s residence. Probation officer safety during

these visits and searches is essential to the effective supervision of the probationer and

thus assists in preventing future criminality.” (Olguin, supra, 45 Cal.4th at p. 381.)

Officers must have ready access to the probationer’s residence to verify the probationer’s

compliance and prevent future criminality such as the sale of stolen goods. Of course,

locked gates and fences, and potentially dangerous animals create unreasonable obstacles

to monitoring probationers. (Ibid., [“[a]nimals can be unpredictable and potentially




                                             17
dangerous when faced with a stranger in their territory, and some pose a great or even

life-threatening hazard to persons in these circumstances”].)

       Here, the condition does not prohibit defendant from locking her doors. It only

prohibits her from erecting locked fences and gates, impediments beyond the house that

might delay access to the residence. In addition, the term “interfere” is not ambiguous

and can be given a reasonable and practical meaning. (Olguin, supra, 45 Cal.4th at

p. 382 [“A probation condition should be given ‘the meaning that would appear to a

reasonable, objective reader.’ ”].) A reasonable interpretation of the challenged

language, “not do anything to interfere,” makes it clear that defendant will be prohibited

from doing anything to impede or deter the probation officer in the exercise of his or her

duties. Were defendant permitted to erect locked gates and fences, it would render the

search and check terms nugatory by adding unreasonable additional obstacles to

probation officers’ execution of their duties.

       Although we believe the knowledge requirement is implicit in the condition, to

prevent arbitrary enforcement and provide clear notice, we will modify the term to

include an explicit knowledge requirement. (See Sheena K., supra, 40 Cal.4th at pp. 891-

892.) We modify probation condition No. 9 as follows: “Permit visits and searches of

places of residence by agents of the Probation Department and/or law enforcement for the

purpose of ensuring compliance with the terms and conditions of probation; not

knowingly do anything to interfere with this requirement, or knowingly deter officers

from fulfilling this requirement, such as erecting any locked fences/gates that would deny



                                             18
access to probation officers, or have any animals on the premises that would reasonably

deter, threaten the safety of, or interfere with, officers enforcing this term.”

                                              III

                                       DISPOSITION

       Mandatory supervision condition No. 9 is modified to provide: “Permit visits and

searches of places of residence by agents of the Probation Department and/or law

enforcement for the purpose of ensuring compliance with the terms and conditions of

probation; not knowingly do anything to interfere with the requirement, or knowingly

deter officers from fulfilling this requirement, such as erecting any locked fences/gates

that would deny access to probation officers, or have any animals on the premises that

would reasonably deter, threaten the safety of, or interfere with, officers enforcing this

term.” As modified, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                  RAMIREZ
                                                                                         P. J.
We concur:



McKINSTER
                           J.



KING
                           J.




                                              19
