COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
December 15, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
PETER JOSEPH DUCKWORTH, JR., DEFENDANT AND APPELLANT.
APPEAL from a judgment of the Superior Court of San Diego County, Daniel B. Goldstein, Judge. Affirmed. (Super. Ct. No. SCN268796)
The opinion of the court was delivered by: Haller, J.
P. v. Duckworth
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This appeal arises out of Peter Joseph Duckworth, Jr.'s, plea of guilty to one count of possessing methamphetamine and proceeds in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende).
FACTUAL AND PROCEDURAL BACKGROUND
In October 2009, police arrested Duckworth for being under the influence of a controlled substance and, in a search incident to the arrest, found a baggie containing five bindles of methamphetamine in his wallet. He was later charged with one count each of possessing methamphetamine for sale, possessing methamphetamine and being under the influence of methamphetamine.
In December 2009, Duckworth agreed to plead guilty to the possession count in exchange for the prosecutor's dismissal of the remaining counts and agreement to have the court place him on probation and reduce the offense to a misdemeanor upon his successful completion of 24 months' probation. The plea agreement contained Duckworth's agreement to waive certain rights to appeal and indicated that he could face a possible sentence of three years in prison, a $20,000 fine and four years' parole if his probation was later revoked. The court released Duckworth on his own recognizance pending sentencing.
At the sentencing hearing, the prosecutor dismissed another pending criminal proceeding against Duckworth, and the court gave Duckworth credit for time served (62 actual days, plus 62 conduct credits pursuant to Penal Code section 4019), suspended the imposition of sentence and placed him on three years' formal probation, subject to various conditions, including that he (1) participate in substance abuse counseling, (2) abstain from alcohol and controlled substance use, (3) not associate with Posole street gang members or affiliates (condition 12.b.), or wear or possess clothing or items evidencing affiliation with that gang (condition 12.i.), (4) not knowingly occupy a stolen vehicle, (5) not own or possess a weapon, (6) not associate with anyone who has a firearm or weapon in his or her possession (condition 12.f.), and (7) not display gang signs or gestures (condition 12.k.). It also imposed an $800 fine, which it deemed satisfied by his time served in custody, a $300 restitution fine and a $300 probation revocation restitution fine, suspended subject to subsequent probation revocation.
Based on Duckworth's waiver of his appellate rights, the issues that he may assert on appeal are limited to matters occurring after the plea. His appellate counsel has filed a brief indicating that he has been unable to identify any argument for reversal and asking that this court review the record for error as mandated by Wende; the brief does not identify any possible, but not arguable, issues in accordance with Anders v. California (1967) 386 U.S. 738 (Anders). We invited Duckworth to file a brief on his own behalf, but he did not respond.
We have reviewed the record in accordance with Wende and, based thereon, requested that the parties brief the issues of whether (1) the probation conditions 12.b., 12.f., 12.i. and 12.k. are unconstitutionally vague or overbroad for their failure to include a requirement that Duckworth have knowledge of the relevant facts (e.g., that he not associate with persons who he knows are gang members) and (2) condition 12.f. (prohibiting the appellant from associating with persons who have firearms or weapons in their possession) is vague because it fails to define what constitutes a "weapon" and is overbroad in failing to distinguish between persons who possess weapons legally and those who do so illegally.
In their responsive letter briefs, the appellant argues, and the Attorney General correctly concedes, that modification of the gang-related conditions to include an express knowledge component is required. (See People v. Leon (2010) 181 Cal.App.4th 943, 949-950; People v. Lopez (1998) 66 Cal.App.4th 615, 627-629.) The Attorney General disagrees, however, with Duckworth's argument that condition 12.f. must also be further modified as described above. We conclude that constitutional principles do not require further modification of condition 12.f.
In placing a criminal defendant on probation, a court has the discretion to impose reasonable probation conditions that promote (a) the reformation and rehabilitation of the probationer and (b) public safety. (Pen. Code, § 1203.1, subd. (j); People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) A probation condition that serves these two purposes is permissible even if it impinges on the probationer's constitutional right to freedom of association, provided that (i) it is sufficiently precise to put the probationer on notice of what is required of him and to permit a court to know whether the condition has been violated and (ii) it is closely tailored to the purpose the condition is designed to achieve. (In re Sheena K. (2007) 40 Cal.4th 875, 890; People v. Lopez (1998) 66 Cal.App.4th 615, 627-628.)
In the context of challenges that condition 12.f. fails to define what constitutes a weapon and is not limited to persons who illegally possess weapons, we find the analysis of People v. Fannin (2001) 91 Cal.App.4th 1399, 1401-1406 (Fannin), apposite. There, the defendant was convicted of violating Penal Code section 12020, subdivision (a)(1), which prohibited the possession of " 'any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, or sandbag,' " based on his possession of a two-foot metal chain with a heavy padlock attached to one end. (Fannin, at p. 1401.) He challenged his conviction on appeal in part on the grounds that the statute was unconstitutionally vague because it failed to provide reasonable notice of what was prohibited and was unconstitutionally broad as applied to ordinary objects that were not specially designed or modified to be used as weapons. (Id. at pp. 1401-1402.)
The appellate court rejected the defendant's constitutional challenges, concluding that the statute could properly be applied to instruments other than those specially crafted or manufactured for criminal purposes. In doing so, it adopted the California Supreme Court's reasoning in People v. Grubb (1965) 63 Cal.2d 614 that a statute might lawfully prohibit " 'the possession of ordinarily harmless objects when the circumstances of possession demonstrate an immediate atmosphere of danger.' " (Fannin, supra, 91 Cal.App.4th at p. 1403, quoting Grubb, at p. 620.) It concluded that the propriety of the statute's application to an object that was not a weapon per se did not create a constitutional issue, but instead one relating to the burden of proof, requiring the prosecution to establish that the defendant possessed the object for purposes of using it as a weapon to support a conviction.
In accordance with the analysis of Fannin, condition 12.f. is not rendered constitutionally infirm merely because it might be applied to objects that are not strictly considered to be weapons. In fact, narrowing the condition as Duckworth urges would allow him to associate with persons who possess objects that are not weapons per se, but that are readily usable, and possessed for use, as weapons. Such an interpretation would render the condition ineffective to serve the rehabilitative and public safety purposes it was designed to achieve and, thus, is not constitutionally required. (In re Sheena K., supra, 40 Cal.4th at p. 890.)
Similarly, condition 12.f. need not be restricted in application to persons who legally possess weapons or objects usable as such. Modifying the condition in that way would allow Duckworth to associate with someone who legally possesses an object that may be used as a weapon and who possesses it for that purpose. Because such a modification would severely curtail the rehabilitative and protective goals of the probation condition, it is not constitutionally required.
For the reasons specified above, the judgment is modified so that probation conditions 12.b., 12.f., 12.i. and 12.k. require that Duckworth:
"12.b. Not associate with any person who you know is (i) a gang member or (ii) a person associated with the Posole gang. [¶] . .
"12.f. Not associate with persons who you know have firearms or weapons in their possession. [¶] . .
"12.i. Not wear, display, use, or possess any insignias, photographs, emblems, badges, buttons, caps, hats, jackets, shoes, flags, scarves, bandanas, shirts or other articles of clothing that you know are evidence of affiliation with or membership in the Posole gang. [¶] .
"12.k. Not display any signs or gestures that you know are gang signs or gestures."
As we have not found any additional reasonably arguable appellate issues, we affirm the judgment as so modified. Competent counsel has represented Duckworth on this appeal.
The judgment is modified as provided herein. As so modified, the judgment is affirmed.
WE CONCUR: NARES, Acting P. J. McINTYRE, J.
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