(Super. Ct. No. 08F03023)
The opinion of the court was delivered by: Nicholson, Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After defendant Ralph David Holmes pleaded no contest to robbery, the trial court suspended imposition of sentence, and placed him on five years' probation with various conditions.
One such probation condition -- reflected in the written order of probation -- was that defendant "shall not own or possess any dangerous or deadly weapons nor remain in any building or vehicle where any person has such a weapon, nor remain in the presence of any armed person." From the bench, the court ordered that defendant not "remain in the presence of any unlawfully-armed person" while on probation.
On appeal, defendant contends this probation condition is unconstitutionally vague and/or overbroad. Specifically, he argues that the prohibition on his "remain[ing] in any building or vehicle where any person has a firearm" is overbroad as it does not differentiate between lawfully and unlawfully armed persons and therefore has "little impact on [his] reformation and rehabilitation" and would instead "restrict [him] from engaging in activities that are unrelated to future criminality, such as going to [a] courthouse or post office where staff are legally armed." He also contends that the condition, as recited by the judge from the bench, prohibiting him from remaining in the presence of any unlawfully armed person is vague because it lacks a knowledge requirement.
The People respond -- consistent with the court's order from the bench -- that the probation condition only prohibits defendant's being in the presence of unlawfully armed persons. We agree. (See People v. Mesa (1975) 14 Cal.3d 466, 471 [a criminal court's oral pronouncement of sentence may control over a conflicting document, such as a minute order or an abstract of judgment, but that is because the oral pronouncement constitutes the rendition of judgment and the written document is ministerial].)
The People also concede, and we agree, that the probation condition must be modified to prohibit defendant's remaining in a building or vehicle where he knows another person unlawfully possesses a dangerous or deadly weapon, or his remaining in the presence of a person whom he knows to be unlawfully in possession of a dangerous or deadly weapon.
"[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.]' [Citation.]" (In re Sheena K. (2007) 40 Cal.4th 875, 890.) "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.] A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]" (Ibid.)
The weapons condition the trial court imposed here does not satisfy the due process concept of fair warning. The absence of a knowledge requirement subjects him to unfair risk that his probation could be revoked if, for example, he is in a building or vehicle with persons lawfully possessing such weapons, or comes into physical proximity to a person who, unknown to him, is unlawfully carrying such a weapon.
In People v. Freitas (2009) 179 Cal.App.4th 747, this court modified a firearms probation condition to specify that the defendant could not knowingly possess or have custody or control of firearms or ammunition. (Id. at p. 752.) We reasoned that "[a] requirement of knowledge should be read into the probation condition for the same reason knowledge is required by CALCRIM No. 2510: the law has no legitimate interest in punishing an innocent ...