Honorable Efren N. Iglesia, Judge (Monterey County Super. Ct. No. SSC120174A)
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[166 Cal.Rptr.3d 191] Christopher J. Wei, Office of the Attorney General, Attorney for Plaintiff/Respondent.
Julie Ann Dunger, Attorney at Law, Sixth District Appellate Program, Attorney for Defendant/Appellant.
We are asked once again to consider whether various probation conditions are unconstitutionally vague and overbroad without an explicit scienter element. A related claim is that an explicit constructive knowledge requirement is unconstitutional. We will conclude that the constructive knowledge element in three probation conditions is not vague. We will also conclude that scienter is implicit in some of the challenged conditions, although a knowledge element should be added to cure concerns about a prohibition on the use or possession of " intoxicants." As to a stay-away provision that refers only to " the victim" when there were two victims, we will reverse the judgment so the trial court can eliminate the ambiguity.
II. TRIAL COURT PROCEEDINGS
A. UNDERLYING OFFENSES AND PLEA
According to the probation report, in the early morning of July 30, 2012, Soledad police officers responded to a report of two males " banging on vehicles" and apprehended defendant Raymundo Rodriguez, then 18 years old, and a 17-year-old male as they tried to hide in a bush. They were arrested along with an 18-year-old female. A car stereo was located near the males. " Victim 1" later described that two windows were broken on her 1993 Honda Accord and a car stereo was missing. Victim 2 never responded to later inquiries as to the extent of any property loss.
Defendant appeared intoxicated at the time of his arrest. At the police station, he repeatedly advised his female companion to keep quiet and he told the male to " request ‘ K-Pod’ " in the jail. Defendant shouted gang slogans including " ‘ SVL’ " during the booking process and called the booking officer names. He was wearing black gloves and a red T-shirt and baseball jacket.
Defendant had been documented by the Soledad Police Department as member of the Norteño criminal street gang Soledad Vatos Locos. He
admitted to a probation officer in this case that he " hangs around" with Norteño gang members, and the same probation officer noted defendant had several gang-related tattoos.
[166 Cal.Rptr.3d 192] A complaint filed July 31, 2012 charged defendant with burglary of a commercial building occupied by Maria Amador (count 1; Pen.Code, § 459),  attempted burglary of a commercial building occupied by Dale Terry (count 2; §§ 664, 459), dissuading a witness from reporting a crime (count 3; § 136.1, subd. (b)(1)), and resisting arrest (count 4; § 148, subd. (a)(1)).
On August 23, 2012, in exchange for a grant of felony probation, defendant agreed to waive preliminary hearing and plead guilty to an added charge of receiving or concealing stolen property (count 5; § 496), with the understanding that it could be reduced to a misdemeanor after 18 months without a probation violation. (§ 17, subd. (b).) Defendant signed and initialed a written waiver of rights form and entered a guilty plea.
B. CONDITIONS OF PROBATION
A probation report was prepared which noted that, since pleading guilty, defendant was charged with misdemeanor public intoxication and resisting arrest on September 1, 2012.
The report recommended suspending imposition of sentence in the felony case and placing defendant on formal probation with 20 conditions, including:
" 7. Pay victim restitution to Victim 1 in the amount of $942.38, and to Victim 2, in an amount to be determined by the Probation Officer. Liability for restitution is joint and several with [the juvenile arrested with defendant]. This order is enforceable as a civil judgment. (PC § 1202.4(a)(3)(B), § 1202.4(i))
" 8. Not use or possess alcohol, intoxicants, narcotics, or other controlled substances without the prescription of a physician; not traffic in, or associate with persons you know, or have reason to know, to use or traffic in, narcotics or other controlled substances. [¶] ... [¶]
" 10. Not possess, receive or transport any firearm, ammunition or any deadly or dangerous weapon. Immediately surrender any firearms or ammunition you own or possess to law enforcement. (PC 12021) [¶] ... [¶]
" 12. Stay away at least 100 yards from the victim, the victim's residence or place of employment, and any vehicle the victim owns or operates.
" 13. Participate in any counseling or substance abuse program the Probation Officer deems necessary, including approved residential treatment....
" 14. Not visit or remain in any area you know, have reason to know, or are told by the Probation Officer to be a gang-gathering area. (The term ‘ gang’ in these conditions of probation refers to ‘ criminal street gang’, as defined in PC § 186.22.)
" 15. Not associate with any individuals you know, have reason to know, or are told by the Probation Officer to be gang members, drug users, or on any form of ...