Filed 11/6/15 P. v. Chiang CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

SHENG HUANG CHIANG,

Defendant and Appellant.

 H040838

 (Santa Clara County

 Super. Ct. No. C1361412)

Pursuant to a negotiated disposition appellant Sheng Huang Chiang pleaded no 

contest to one count of making a criminal threat (Pen. Code, § 422).1 In exchange for his 

no contest plea, appellant was promised a six-month county jail term (top/bottom) and the 

dismissal of one count of brandishing a deadly weapon other than a firearm (§ 417, 

subd. (a)(1)).

On March 13, 2014, appellant tried to withdraw his plea, but the court denied the 

motion. Thereafter, the court placed appellant on probation for five years on various 

terms and conditions and imposed a six-month county jail term. The court told appellant 

that he was eligible for all programs, including the electronic monitoring program. After 

a discussion off the record, the court noted that the prosecutor had indicated that he was 

willing to have the court reduce the jail term from six months to three months. 

Accordingly, the court ordered only a three-month jail term.

 

1 All further statutory section references are to the Penal Code unless otherwise 

indicated.
2

Relevant to this appeal, the probation officer recommended the following 

probation conditions: “10. The defendant shall submit to chemical tests as directed by

the Probation Officer. [¶] 11. The defendant shall not possess or use illegal drugs or 

illegal controlled substances or go anywhere he/she knows illegal drugs or 

non-prescribed controlled substances are used or sold.” The prosecutor stated that he did 

not “believe there’s any need for drug testing.” Accordingly, the court ordered that there 

“will be no testing . . . .”

The prosecutor asked for “no contact with the victim and with the address.” The 

court responded, “So there will be a no contact order with Ms. Ling . . . Chiang and the 

address, we’re going to have you remain at least 100 yards away from the address.”2 The 

prosecutor informed the court of Ms. Chiang’s address—1476 Goodfellow Place. The 

court reiterated that appellant was to “remain at least 100 yards away from that address.” 

Nowhere in the probation officer’s report is there a recommendation that appellant have 

no contact with Ms. Chiang.

Defense counsel objected to the chemical testing requirement and substance abuse 

conditions on the ground that she did not “think that’s the issue here.” The court asked 

the prosecutor for his input; he responded that he “agree[d].” The court struck 

condition No. 10. However, the court went on to order that appellant “not . . . possess or 

use illegal drugs or illegal controlled substances or go anywhere you know illegal drugs 

or non-prescribed controlled substances are used or sold.” The court asked appellant if 

he agreed to the terms and conditions of probation; appellant said that he did not 

“completely understand.” The court asked appellant, “What portion of the probation 

conditions did [he] not understand?” Appellant asked why he had to submit to the tests 

 

2 According to the probation officer’s report, appellant lived with his sister “Ling 

Chen” because he suffers from mental illness. On the day of the incident underlying this 

case, she telephoned the police. It appears that appellant had threatened her and 

brandished a knife. Appellant’s opening brief refers to his sister as Ms. Chiang, as did 

the court. We do the same.
3

for drug use; the court told him that he did not have to because his counsel had objected 

to the condition and the prosecutor agreed that the condition should not apply. Defense 

counsel informed the court that she would go over the conditions with appellant with the 

assistance of the interpreter after the court hearing was complete.

The court asked appellant if he had any other questions about the conditions of his 

probation. Appellant said he was not sure about the terms, but wanted to know why he 

could not withdraw his “erroneous plea.” The court explained that his motion to 

withdraw his plea was based on his claim that he was not advised of his right to a jury 

trial and that the interpreter “ ‘[d]id not go over each item in the waiver form word for 

word. Rather, the interpreter gave [him] a brief summary only.’ ” The court explained 

that the interpreter had “signed the waiver of rights form and represented to the Court that 

the form had been translated in the Mandarin Chinese language to [appellant] and that 

[he] stated that [he] understood the contents of the form, and then [he] initialled [sic] and 

signed the form.” The court went on to say that the court had advised appellant of his 

right to a jury trial/court trial and appellant had stated that he understood and gave up the 

right. The court explained that it had made a decision on the motion to withdraw the plea 

and was not going to change it. The court continued, “The question for you is, do you 

understand these terms and conditions of your probation?” An off-the-record discussion 

ensued. Back on the record, the court indicated that it was approximately 15 to 20 

minutes that the court had been off the bench, and it asked defense counsel if she had had 

an opportunity to review appellant’s probation conditions with her client and an 

interpreter. Defense counsel confirmed that she had. The court confirmed with appellant 

that he had had enough time to go over the conditions of his probation and asked if he 

understood “these terms and conditions of probation[.]” Appellant responded, 

“Approximately, yes.” The court asked appellant if he accepted the terms and conditions, 

he responded, “Yes, your Honor.”
4

On March 18, 2014, appellant appeared before Judge Manley to report that he had 

enrolled in the electronic monitoring program. Judge Manley reiterated that appellant 

was to have no contact with “Ling Chiang.” Appellant promised that he would not 

“contact her for the rest of [his] life.”

On appeal, appellant challenges the no-contact order as unconstitutionally vague 

and overbroad and condition No. 11—the substance abuse condition on the ground that it 

lacks a knowledge requirement and bears no relationship to his past, present or future 

criminality.

Discussion

The Applicable Law and Standard of Review

A defendant’s appellate challenge to a probation condition on reasonableness

grounds is forfeited if it is not raised at the hearing where the condition is imposed. 

(People v. Welch (1993) 5 Cal.4th 228, 230.) Sentencing courts have broad discretion to 

impose probation conditions regulating conduct that is not itself criminal, but the 

conditions “must be ‘reasonably related to the crime of which the defendant was 

convicted or to future criminality.’ ” (Id. at pp. 233-234.) “A timely objection allows the 

court to modify or delete an allegedly unreasonable condition or to explain why it is 

necessary in the particular case.” (Id. at p. 235.)

On the other hand, an objection based on constitutional grounds (as opposed to 

reasonableness grounds), such as an appellant’s claim that the no contact order is vague 

and overbroad and that condition No. 11 is unconstitutionally vague because it lacks a 

knowledge requirement, is not always forfeited by the failure to raise the objection 

below. (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) Such a constitutional 

challenge is not forfeited when it presents a “pure question of law.” (Id. at p. 887.) “In 

common with a challenge to an unauthorized sentence that is not subject to the rule of 

forfeiture, a challenge to a term of probation on the ground of unconstitutional vagueness 

or overbreadth that is capable of correction without reference to the particular sentencing 
5

record developed in the trial court can be said to present a pure question of law. 

Correction on appeal of this type of facial constitutional defect in the relevant probation 

condition . . . may ensue from a reviewing court’s unwillingness to ignore ‘correctable 

legal error.’ ” (Ibid., italics added.) Our Supreme Court has stressed, however, that 

“not . . . ‘all constitutional defects in conditions of probation may be raised for the first 

time on appeal, since there may be circumstances that do not present “pure questions of 

law that can be resolved without reference to the particular sentencing record developed 

in the trial court.” [Citation.] In those circumstances, “[t]raditional objection and waiver 

principles encourage development of the record and a proper exercise of discretion in the 

trial court.” [Citation.]’ [Citation.] We also emphasize that generally, given a 

meaningful opportunity, the probationer should object to a perceived facial constitutional 

flaw at the time a probation condition initially is imposed in order to permit the trial court 

to consider, and if appropriate in the exercise of its informed judgment, to effect a 

correction.” (Id. at p. 889.) 

We review constitutional challenges to probation conditions de novo. (In re 

Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) However, as to all other challenges, we 

review a trial court’s imposition of a probation condition for an abuse of discretion. 

(See People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121 (Carbajal).)

No Contact Order

Appellant argues that the no-contact order, which requires him to stay away from 

Ms. Chiang is unconstitutionally vague and overbroad. Appellant contends that he could 

unwittingly violate the condition if he happened to come across her in a public place, 

such as a grocery store, a shopping mall, or simply walking down a crowded street. He 

asserts that absent a knowledge requirement, this condition imposes liability upon lawful 

activity that is constitutionally protected and unrelated to future criminality. Further, he 

asserts that requiring him to stay 100 yards away from 1476 Goodfellow Place, his 

sister’s residence, for the entire five years he is on probation does not pass constitutional 
6

muster. He contends that during that time his sister may change residences making his 

presence at that address otherwise lawful and constitutionally protected. Appellant states 

that this court should modify the condition to include a knowledge requirement. 

Appellant makes no suggestion as to how this court should do this.

Respondent has no objection to this court’s modifying the no-contact order to 

include express knowledge requirements. Respondent suggests that we modify the 

no-contact order by requiring that appellant “not knowingly have contact with 

Ms. [Chiang], in any manner, including face to face, through letters, electronically, or by 

any other medium.” In addition, respondent suggests that we modify the condition to 

require that appellant “not knowingly come within 100 yards of Ms. [Chiang]’s 

residence, 1476 Goodfellow Place, or any other address to which she moves . . . during 

the period of probation.”

As can be seen, appellant contends that the no-contact order is a condition of his

probation. Appellant is correct in that it was imposed because he was granted probation. 

However, at the sentencing hearing, a representative from the electronic monitoring 

program informed the court that appellant “needs to be on G.P.S. because of the nature of 

his offense . . . .” The court agreed. The representative noted that there was a potential 

issue of a stay-away order and that G.P.S. monitoring would help enforce such an order. 

It was in response to this that the prosecutor asked for no contact with the victim and the 

address of 1476 Goodfellow Place. Only after this did the court go on to impose the 

other conditions as outlined in the probation officer’s report. As noted, nowhere in the 

probation officer’s report is there a recommendation for a no-contact condition of 

probation. Given that this case involved domestic violence, we believe the no-contact 

order was imposed under section 1203.097, subd. (a)(2) [criminal court protective order 

required in domestic violence cases involving threats].)

Accordingly, the challenged no-contact order is akin to an “obey all laws” 

probation condition, for which a violation of the law must be established by a 
7

preponderance of the evidence. (See, e.g., People v. Rodriguez (1990) 51 Cal.3d 437, 

442.) Since a violation of a protective order must be “willful and knowing” (§ 166, 

subd. (c)(1)), proof of a violation necessarily requires proof that it was knowing and 

willful, and therefore any knowledge requirement is implicit.

As a matter of common sense, a violation of a protective order is much less 

susceptible to innocent violation than probation conditions barring possession of stolen 

property or association with felons or gang members (which are routinely modified to 

require knowledge), because the status of the property or person is not always obvious. 

(See People v. Freitas (2009) 179 Cal.App.4th 747, 751 [stolen property]; People v. 

Garcia (1993) 19 Cal.App.4th 97, 102 [felons].) In the rare case where a probationer 

might innocently find himself in violation of a protective order, it is quite apparent that 

the Penal Code requires that the probationer’s conduct be willful and knowing in order to 

constitute a violation. The knowledge and wrongful intent requirements are so 

manifestly implied that to require they be expressly stated is neither logical nor 

necessary. Furthermore, to modify the no-contact order to require that appellant not 

“knowingly” come within 100 yards of 1476 Goodfellow Place is an exercise in futility 

since appellant used to live with his sister and is fully aware of where 1476 Goodfellow 

Place is located.

As to appellant’s argument that the requirement that he stay 100 yards away from

1476 Goodfellow Place for the entire five years he is on probation does not pass 

constitutional muster because during that time his sister may change residences, we will 

modify the condition. Accordingly, we modify the no-contact order to state that during 

the time appellant is on probation appellant shall not come within 100 yards of 

Ms. Chiang’s residence, 1476 Goodfellow Place, while she lives there or any residence to 

which she moves. 
8

Substance Abuse Condition

Appellant contends that this court must strike the substance abuse condition, 

condition No. 11, entirely. In essence, he asserts that it was the judge’s intent to strike 

condition No. 11 at the time the court struck the chemical testing requirement, 

condition No. 10. The record belies appellant’s assertion.

Specifically, the court imposed condition No. 11. Expressly, the court stated,

“you’re not to possess or use illegal drugs or illegal controlled substances or go anywhere 

you know illegal drugs or non-prescribed controlled substances are used or sold.” When 

the court imposed this condition neither party made any objection. 

We reject appellant’s argument that the court “simply misspoke[].” Although 

defense counsel objected to the “chemical tests and substance abuse conditions” and the 

prosecutor said “I agree” we note that there are indications in the probation officer’s 

report that the court struck only condition Nos. 8 and 10; both conditions have a wavy

line through them. Condition No. 11 does not.

Alternatively, appellant contends that we should strike the component of 

condition No. 11 that bars him from being in places where illegal drugs or non-prescribed 

controlled substances are used or sold because it is not reasonably related to him or his 

crime.

As our Supreme Court has explained, “[i]n granting probation, courts have broad 

discretion to impose conditions to foster rehabilitation and to protect public safety 

pursuant to . . . section 1203.1. [Citations.] ‘The court may impose and require . . . 

[such] reasonable conditions[] as it may determine are fitting and proper to the end that 

justice may be done, that amends may be made to society for the breach of the law, for 

any injury done to any person resulting from that breach, and generally and specifically 

for the reformation and rehabilitation of the probationer.’ [Citation.] The trial court’s 

discretion, although broad, nevertheless is not without limits: a condition of probation 

must serve a purpose specified in the statute. In addition, we have interpreted . . .
9

section 1203.1 to require that probation conditions [that] regulate conduct ‘not itself 

criminal’ be ‘reasonably related to the crime of which the defendant was convicted or to 

future criminality.’ [Citation.] 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.’ ” [Citations.]’ [Citation.]” 

(Carbajal, supra, 10 Cal.4th at pp. 1120-1121.)

“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.]” (People v. Lent (1975) 15 Cal.3d 481, 486,

fn. omitted, superseded on another ground by Proposition 8 as stated by People v.

Wheeler (1992) 4 Cal.4th 284, 290-295.) “The test is clearly in the conjunctive, that is, 

the three factors must all be found to be present in order to invalidate a condition of 

probation.” (People v. Balestra (1999) 76 Cal.App.4th 57, 65, fn. 3.)

As for the part of the condition that requires that appellant not go anywhere he 

knows illegal drugs or non-prescribed substances are sold, appellant compares this case 

to People v. Brandão (2012) 210 Cal.App.4th 568, 574 (Brandão ), where this court 

considered whether a no-gang-contact probation condition was “ reasonably related to a 

risk that defendant will reoffend.” The defendant in Brandão pleaded no contest to 

possessing a controlled substance, and nothing in the record indicated that the offense 

was gang related. (Id. at pp. 570, 576.) However, in Brandão, the probation report stated 

that the defendant “had never been involved with any criminal street gangs, nor did he

have any family members who associated with such groups.” (Id. at pp. 570-571.) This 

court held that the trial court erred by imposing the challenged condition, because “the

record divulge[d] (1) no ties between defendant and any criminal street gang, (2) no such

ties involving any member of defendant’s family, and (3) no criminal history showing or

strongly suggesting a gang tie.” (Id. at p. 576.)
10

Certainly, the record supports the conclusion that the part of probation 

condition No. 11 that is challenged here—going anywhere appellant knows illegal drugs 

or non-prescribed controlled substances are used or sold—has no relationship to the 

crime of which appellant was convicted, and it does not relate to conduct that is criminal. 

In short, there is no evidence in the record that illegal drugs were related to appellant’s 

offenses.

However, a condition of probation that does not relate to the convicted crime may 

still be valid if it is reasonably related to prevent future criminality. (People v. Olguin

(2008) 45 Cal.4th 375, 380.) In order to relate to future criminality, the probation 

condition must have some “rational factual basis . . . that defendant may commit a 

particular type of crime in the future.” (In re Martinez (1978) 86 Cal.App.3d 577, 583.)

Respondent points out that the probation report shows that appellant’s sister stated

that appellant “suffers from mental illness and has difficulty determining what is good 

and what is bad”; and he “does not think things through.” She described appellant as 

“gullible” and stated that although he has never tried any drugs in the past, while he was 

in county jail someone convinced him that he needed to try marijuana because it would

“ ‘calm’ him.” She thought that appellant is “now under the belief that marijuana will 

help him.” Respondent argues that “[t]he trial court’s intent was clear.” We are not 

persuaded. 

There is no support in the record for the conclusion that appellant currently suffers 

from drug abuse issues such that allowing him to walk through areas where illegal drugs 

are used or sold will somehow contribute to his future criminality. His sister’s concerns 

about her brother are entirely too speculative without any evidentiary bases to support a 

conclusion that appellant will seek out illegal drugs in the future. As such, the condition 

is not a reasonable way to ensure his compliance with the law. Common sense requires 

that a statement of a defendant’s relative to a probation officer, without more, cannot be 

the sole basis for the imposition of probation conditions. To hold otherwise would 
11

subject defendants to potentially unreasonable conditions that are neither “narrowly 

drawn” nor “ ‘specifically tailored to the individual probationer.’ ” (People v. Smith

(2007) 152 Cal.App.4th 1245, 1250, quoting In re Babak S. (1993) 18 Cal.App.4th 1077, 

1084 (Babak S.); In re Luis F. (2009) 177 Cal.App.4th 176, 189.) We would not expect a 

trial court to unwittingly impose probation conditions that impinge on a defendant’s 

constitutional right to intrastate travel (See, In re White (1979) 97 Cal.App.3d 141, 148

[the right to intrastate travel, which includes intramunicipal travel, is a basic human right 

protected by the United States and California Constitutions as a whole]), solely 

predicated on a relative’s unsubstantiated statement to a probation officer that a defendant

is gullible, does not think things through, and thinks that marijuana will help him.

Probation conditions restricting a probationer’s exercise of his or her constitutional 

rights are upheld only if narrowly drawn to serve the important interests of public safety 

and rehabilitation, and if they are “specifically tailored to the individual probationer.” 

(Babak S., supra, 18 Cal.App.4th at p. 1084.) We cannot say that the condition that 

appellant not go anywhere he knows illegal drugs or non-prescribed controlled

substances are used or sold is specifically tailored to appellant. Accordingly, we will 

strike that portion of condition No. 11.

As to the remaining portion of condition No. 11—prohibiting appellant from using 

or possessing illegal drugs or illegal controlled substances—appellant contends that it 

should contain an explicit knowledge requirement. 

This court considered a similar probation condition in People v. Rodriguez (2013) 

222 Cal.App.4th 578 (Rodriguez). The condition under consideration in Rodriguez

required that the defendant “ ‘[n]ot use or possess alcohol, intoxicants, narcotics, or other 

controlled substances without the prescription of a physician . . . .’ ” (Id. at p. 592.) 

In Rodriguez the defendant asserted that the condition had to be modified to include an 

express knowledge requirement. We disagreed, concluding that a knowledge 

requirement was “reasonably implicit” in the probation condition. (Id. at p. 593.)
12

We explained that “Division 10 of the Health and Safety Code is the California Uniform 

Controlled Substances Act. (Health & Saf. Code, § 11000 et seq.) Case law has 

construed these statutes as including implicit knowledge elements. ‘[A]lthough criminal 

statutes prohibiting the possession, transportation, or sale of a controlled substance do not 

expressly contain an element that the accused be aware of the character of the controlled 

substance at issue ([Health & Saf.Code,] §§ 11350-11352, 11357-11360, 11377-11379), 

such a requirement has been implied by the courts.’ ” (Ibid.)

Following the reasoning set forth in Rodriguez, we conclude that with respect to 

the condition prohibiting defendant from possessing or using illegal drugs or illegal 

controlled substances, what “is implicit is that possession of a controlled substance 

involves the mental elements of knowing of its presence and of its nature as a restricted 

substance.” (Rodriguez, supra, 222 Cal.App.4th at p. 593.) Therefore, no modification is 

necessary.

3

Disposition

The judgment is modified by striking the probation condition requiring appellant 

not to go anywhere he knows illegal drugs or non-prescribed controlled substances are 

used or sold. Further, the no-contact order is modified to read that during the time 

appellant is on probation appellant shall not come within 100 yards of Ms. Chiang’s 

residence, 1476 Goodfellow Place, while she lives there, or any residence to which she 

moves. As so modified the judgment is affirmed.

 

3 Appellant acknowledges the holding in Rodriguez but contends that it was 

wrongly decided. We decline to reconsider Rodriguez.
_________________________________

ELIA, J.

WE CONCUR:

_______________________________

RUSHING, P. J.

_______________________________

PREMO, J.

The People v. Chiang

H040838