Filed 12/11/15 P. v. Zamudio CA4/1
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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.)
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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
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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
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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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