Filed 1/15/14 P. v. Rodriguez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CHRISTOPHER RODRIGUEZ, Defendant and Appellant. H039314 (Santa Clara County Super. Ct. No. C1241888)

Defendant Christopher Rodrig uez pleaded no contest to inflicting corporal injury on a cohabitant. (Pen. Code, § 273.5, subd. (a).) 1 The trial court granted a three-year term of probation including six months in co unty jail as a condition of probation. Among other conditions of probation, the court impo sed a five-year peaceful contact order and ordered defendant not to possess “any item un der the law during probation that would be considered a deadly or dangerous weapon.” On appeal, defendant contends the trial court lacked authority to impose a fiveyear peaceful contact order lasting two year s longer than his three-year probationary period. Defendant also argues that the c ondition not to possess a deadly or dangerous weapon is vague and overbroad absent a scienter requirement, and violates his constitutional right to possess property.

1 Subsequent undesignated statutory references are to the Penal Code.2 We will modify the length of the peaceful contact order to be coextensive with defendant’s probationary term. As to the co ndition that defendant no t possess a deadly or dangerous weapon, we will modify it to prohibit knowing possessi on of a deadly or dangerous weapon, but we find no violation of defendant’s constitutional right to possess property. I. F ACTUAL AND P ROCEDURAL B ACKGROUND 2 On August 16, 2012 , police responded to a report of a domestic violence incident in the City of Santa Clara. The victim, defendant’s gi rlfriend, told police she was sleeping on the couch when she was awakened by defendant, who was in a rage. He
believed she had taken his walle t, and he demanded to know where it wa s. He told her, “You know where it is bitch,” and grabbed he r face, forcing her he ad down onto the
couch. The victim could not breathe and resi sted physically until she managed to escape. She had light bruising around her mouth area, blood splatter on her cheeks, an abrasion inside her mouth, and br oken blood vessels in th e white of her eyes.
Defendant denied these alle gations and claimed the victim had imagined the event as a result of mental illness. She was eight weeks pregnant with th eir child at the time. A felony complaint charge d defendant with inflicti ng corporal injury on a cohabitant (§ 273.5, subd. (a); count 1), a ssault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2), and violatin g a protective order (§ 166, subd. (c)(1); count 3). Defenda nt pleaded no contest to inf licting corporal injury on a cohabitant in exchange for probation, incl uding six months in county jail. (§ 273.5, subd. (a).) At sentencing, the trial court suspended imposition of the sentence and granted a three-year term of probation, including si x months in county jail as a condition of probation. Among other conditio ns of probation, the court or dered, “the Defendant shall

2 The factual narrative is based on the probation report.3 not annoy, harass, strike, threaten, sexually assault, batter, stalk, destroy personal property of or otherwise distur b the peace of the victim.” The court emphasized that this was a peaceful contact protective order as opposed to no contact protective order, and
cited sections 136.2 and 1203.097 as the ba sis for the order. The court ordered the peaceful contact order to last five years. Defense counsel argued that “it would be more appropriate to have it coterminous with th e initial grant of probation,” but the court impliedly overruled the objection. Additionally , the court ordered, “the Defendant shall not possess any item under the law during probatio n that would be cons idered a deadly or dangerous weapon.” Defendant objected to this condition as lack ing a nexus to the offense, but the court overruled the objection. The remaining counts were dismissed.
II. D ISCUSSION A. The Five-Year Peaceful Contact Order Defendant contends the trial court la cked authority under sections 136.2 and 1203.097 to impose a peaceful contact order la sting five years. Defendant argues that although subdivision (a) of section 136.2 author izes the court to issue a peaceful contact order, the duration of such an order is limite d to the pendency of the criminal action in which it is issued. Similarly, although sec tion 1203.097 authorizes the court to issue a peaceful contact order as a cond ition of probation, defendant argues that the court has no authority to enforce a conditio n of probation once the proba tionary period has expired. Defendant therefore requests that we limit the duration of the peaceful contact order to three years. The Attorney General conc edes the trial court lacks jurisdiction to enforce a peaceful contact order after the expiration of defendant’s probationary period. However, the Attorney General contends defendant fo rfeited the issue by failing to object. Furthermore, the Attorney Gene ral asks that we not specify a three-year limit because the trial court could modify defend ant’s probationary period.4 We find defendant has not forfeited his clai m. First, while defense counsel did not explicitly use the word “objection” in his ar gument to the court, counsel argued that the duration of the peaceful contact order shou ld be coterminous w ith the probationary period. This was sufficient to put the issue before the cour t and the prosecution, and the court clearly rejected the argument. Furtherm ore, an unauthorized sentence falls within the “narrow exception” to the forfeiture rule for sentences is sued in excess of jurisdiction. ( In re Sheena K. (2007) 40 Cal.4th 875, 886.)
As to the merits of the cl aim, we agree that the trial court may not issue a peaceful contact order lasting longer than th e probationary period. (§ 1203.3; Ex parte Acosta (1944) 65 Cal.App.2d 63, 64) [“nowhere in the law is th e court empowered to impose
conditions that cannot be fulfilled and satisfied within the limit of the period of time fixed by the court as the term of probation.”].) No r could the order have been authorized under section 136.2, subdivision (a), since protectiv e orders issued under that provision are limited in duration to the pendency of the criminal proceeding. ( People v. Stone (2004) 123 Cal.App.4th 153, 159.) However, we agree with the Attorney Ge neral that a specific three-year limit on the order is unjustified, since the trial court could modify the probationary period. Therefore, we will m odify the length of the peaceful contact order to terminate upon the expiration of defendant’ s probationary term, or in five years,
whichever comes first.
B. The Prohibition on Possession of a Deadly or Dangerous Weapon
1. Scienter Requirement Defendant contends the probation condition prohibiting him from possessing a deadly or dangerous weapon is vague and overbroad absent a scienter requirement
because he could unkno wingly possess a deadly or dangerous weap on. The Attorney General contends the scienter requirement is already implicit in the condition. “[T]he underpinning of a vagueness challe nge is the due process concept of ‘fair warning.’ ” ( In re Sheena K., supra, 40 Cal.4th at p. 890.) “A probation condition ‘must5 be sufficiently precise for the probationer to know what is required of him, and for the
court to determine whether th e condition has been violated ,’ if it is to withstand a challenge on the ground of vagueness.” ( Ibid. ) That is, the defe ndant must know in advance when he may be in violation of the condition. “[T]he law has no legitimate interest in punishing an innocent citizen who has no knowledge of the presence of a [prohibited item].” ( People v. Freitas (2009) 179 Cal.App.4th 747, 752 [modifying probation condition to proh ibit knowing possession of a fi rearm or ammunition].) Accordingly, courts have consistently orde red modification of pr obation conditions to incorporate a scienter requirement where a probationer could unknowingly engage in the prohibited activity. ( In re Victor L. (2010) 182 Cal.App.4th 902, 912-913 [modifying probation condition to proh ibit knowing presence of weapons or ammunition]; In re
Justin S. (2001) 93 Cal.App.4th 811, 816 [modifyin g prohibition on association with gang members to prohibit associat ion with known gang members]; In re Kacy S. (1998) 68 Cal.App.4th 704, 713 [modif ying probation condition that defendant not associate with any persons not approved by his probation officer]; People v. Lopez (1998) 66 Cal.App.4th 615, 629 [modifying probati on on displaying gang-re lated indicia].) It is possible that defendant could co me into possession of an object prohibited under this probation condition without knowing it. For example, another person could leave a prohibited object in defendant’s car or house without his knowledge. To enforce a probation violation for unknowing possessi on of a prohibited item would violate the principles above. We acknowl edge that probation conditions contain an implicit scienter requirement. ( People v. Patel (2011) 196 Cal.Ap p.4th 956, 960.) However, we believe that making the requirement explicit provides clearer notice to the parties, courts, and probation officers. Therefore, we will modify this probation condition to prohibit knowing possession of a dead ly or dangerous weapon.6 2. Right to Possess Property Defendant also contends the probati on condition prohibiting him from possessing deadly or dangerous weapons is unconstitutionally overbroad in violation of his right to possess property under the California Constitution. (Cal. Const., art. I, § 1.) He argues that the condition prohibits him from possessing “numerous items commonly used every day that are ‘inherently deadly or dangerous’ such as forks and knives at the dinner table, and countless tools such as screwdrivers, el ectric drills and hammers.” The Attorney
General contends the condition is not overbr oad because it is limit ed to possession with
the intent to use the ob ject as a weapon. A probation condition that imposes limita tions upon constitutional rights must be narrowly tailored to achieve legitimate purposes. ( In re Sheena K. , supra , 40 Cal.4th at p. 890; People v. Olguin (2008) 45 Cal.4th 375.) “ ‘ “Where a condition of probation requires a waiver of constitutional rights, the condition must be narrowly drawn. To the extent it is overbroad, it is not reasonably related to a compelli ng state interest in
reformation and rehabilitation a nd is an unconstitutional restri ction on the exercise of fundamental constitutional rights.” ’ ” ( People v. Garcia (1993) 19 Cal.App.4th 97, 102.) “[T]he phrase ‘dangerous or deadly weapon ’ is clearly established in the law.” ( In
re R.P. (2009) 176 Cal.App. 4th 562, 568.) “The definiti on consistently include[s] the harmful capability of the item and th e intent of its user to inflict, or threaten to inflict, great bodily injury.” ( Ibid. ) The phrase therefore prohibits “items specifically designed as weapons, and other items not specifically designed as weapons that the probationer intended to use to inflict, or threaten to inflict, great bodily injury or death.” ( People v.
Moore (2012) 211 Cal.Ap p.4th 1179, 1186 ( Moore ).) In Moore, the court considered a challenge based on overbreadth and vagueness grounds to a similar probation condition prohibiting use or possession of “ ‘any dangerous or deadly weapons, including firearms, knives, and other concealable weapons.’ ” ( Id. at p. 1183.) Because the condition contains an implicit scienter requirement, the court found this definition sufficiently7 precise to overcome the defendant’s challenge. “[A] trial court may not revoke Moore’s probation unless his violation of the wea pons condition is knowi ng and willful.” ( Id. at p. 1189.) By the same logic, defendant’s challe nge fails here, even though he cites constitutional grounds as the basis for his cha llenge. As noted above, the definition of dangerous or deadly items includes two categor ies of objects. First, it includes items specifically designed as weapons, e.g. guns. ( Moore , supra , 211 Cal.App.4th at p. 1186.) The law is clear that defendant, as a fel on, has no constitutional right to possess such objects. ( Id. at p. 1187; see People v. Freitas , supra , 179 Cal.App.4th at p. 751.) Second, the definition includes “items not specifically designed as weapons that the probationer intended to use to inflict, or threaten to inflict, great bod ily injury or death.” ( Moore , supra , 211 Cal.App.4th at p. 1186.) Th is would only prohibit possession of
items such as forks and knives if defendant intended to use them to inflic t, or threaten to inflict, great bodily in jury or death. Thus, defendant is free to use forks and knives at the
dinner table when he intends to eat his di nner with them. We fi nd the inherent limiting
condition described in Moore sufficiently narrows the prohib ition to satisfy any tailoring requirements in accord with de fendant’s constitutional rights.
III. D ISPOSITION Defendant’s probation conditio ns are modified as follows: The peaceful contact order shall terminate upon the expiration of de fendant’s probationary period, or in five years after its issuance, whichever comes first. The probation condition prohibiting possession of any item that would be considered a deadly or dangerous weapon under the law is modified to prohibit knowing possession of any item that would be8 considered a deadly or dang erous weapon under the law. As modified, the judgment is
affirmed.

_______ ____________ ____________ Márquez, J.

WE CONCUR:

________________ _____________________ Rushing, P. J.

___________________ ___________________ Premo, J.