Filed 6/19/13 P. v. Carnero CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

MIGUEL CARNERO,

Defendant and Appellant. 2d Crim. No. B240234 (Super. Ct. No. BA372728) (Los Angeles County)

Miguel Carnero was granted proba tion after a jury convicted him of violating a protective order (P en. Code, § 166, subd. (a)(4)) 1 and vandalism (§ 594, subd. (a)). Carnero appeals, contending that two probation conditions lack a scienter requirement and are vague and overbroad. The trial court ordered appellant (1) not to own, use, or possess dangerous or deadly weapons including firearms or other concealable weapons, and (2) not follow, harass, molest any victim or witness in the case. We affirm. ( People v. Moore (2012) 211 Cal.App.4th 1179, 1186-1188.) Facts & Procedural History This case arises out of a long te rm feud between appellant and his neighbors, Janet Workman and Robert Berg. On the evening of May 10, 2010, Workman asked appellant to shut down a loud diesel engine that had been running three hours.

1 All statutory references are to the Penal Code.2 Appellant screamed profanities, spit in Workman's face, and swung at Workman, knocking her to the ground.

Workman and her husband Robert Berg obtained a restraining order and built a view barrier atop the block wall between the houses. On November 2, 2011, appellant saw the work in progress, was en raged, and smashed the wall barrier with a hammer. When Burg returned home and saw the damage, appellant climbed partway up the wall and yelled, "Fuck you, Berg!" After the police arrived, Berg told the o fficers, "This is the kind of stuff he's doing." Appellant shouted at Berg: " Don't ta lk to me, you mother fucker." Los Angeles

Police Officer Michael Geitheim told appellant he was viola ting the restraining order and to stop talking to Berg. At trial, appellant admitted he was subject to a restraining order

and told not to talk to Workman or Berg. At sentencing, the prosecution argued that ammunition and firearms were recently found in appellant's house during a pr obation check of appellant's son (Kenny). The son was on felony probation for drug sales. It was a c oncern because appellant had a history of violence dating back to 1982 for ba ttery, assault with a de adly weapon (1986), brandishing a weapon (1987), ba ttery on his wife (1997), and battery on his daughter (2003). The trial court granted probation, ordered appellant to attend anger management classes, issued a protective or der (§ 136.2), and imposed the following probation conditions: "You're ordered not to own, use, possess dangerous or deadly weapons including firearms or other conceal able weapons." "Do not follow, harass, molest any victim or witness in this case, es pecially the victim[s] Janet Workman, Robert Berg."

Discussion Appellant argues that the proba tion conditions lack a "knowing" requirement and are unconstitutionally vague. (See In re Sheena K. (2007) 40 Cal.4th 875, 890-891 [applying de novo review]. " 'A probation condition which either forbids or requires the doing of an act in terms so vagu e that persons of common intelligence must3 necessarily guess at its meaning and differ as to its applicati on, violates due process.' " ( People v. Freitas (2009) 179 Cal.Ap p.4th 747, 750.)

In People v. Moore, supra, 211 Cal.App.4th 1179, our colleagues in Division Three rejected a vagueness/overbr eadth challenge to th e following probation order: "Do not own, use, or possess any dangerous or deadly weapons, including firearms, knives, and other concealable weapons." ( Id. , at p. 1183.) Defendant argued that if an express knowledge requirement was not added to th e probation order, he could

be found in violation of probation for the unwitting possession of a weapon. ( Ibid .) The

Moore court rejected the argument on the ground that the knowledge requirement is manifestly implied. ( Id. , at p. 1185.) "[T]he weapons prohibition here is sufficiently precise to inform [the defendant] of what is required of him, and fo r a court to determine

whether the condition has been violated. Because [the defendant] can have no doubt about what is prohibited, inno cent or inadvertent violation of the condition is far less likely than in cases in which the parameters of the probation condition are imprecise." ( Id. , at p. 1186.) Applying a similar due process analysis, we reject the argument that the probation condition not to own, use, or posse ss deadly or dangerous weapons is vague or fails to comport with due process. Appellant complains that the ph rase "dangerous or deadly weapons" could be construed to proh ibit possession of a rope, a baseball bat, or a shoe. But it is willful possession or use of an object as a dangerou s or deadly weapon that is prohibited. To qualify as a deadly weapon, the object must be used in such a manner as to be capable of producing, and likel y to produce, death or great bodily injury. ( People v. Aguilar (1997) 16 Cal.4th 1023, 1037.) "[L]egal definitions of 'deadly or dangerous weapon,' 'deadly weapon,' 'dangerous weapon,' and use in a 'dangerous or deadly' ma nner, consistently include the harmful capability of the item and th e intent of its user to inflict, or threaten to inflict, great bodily injury. As a re sult of these well-defined term s, the phrase 'dangerous or deadly weapon' is clearly es tablished in the law." ( In re R.P. (2009) 176 Cal.App.4th 562, 568.) A court could not find appellant in violation of probation unless the evidence4 showed that appellant willfully violated the danger ous or deadly weap on condition. (See

e.g., People v. Quiroz (2011) 199 Cal.Ap p.4th 1123, 1129; People v. Cervantes (2009) 175 Cal.App.4th 291, 295; People v. Galvan (2007) 155 Cal.App.4th 978, 982.) "Thus, in the unlikely event that [a ppellant] finds himself in unknowing and inadvertent possession of a firearm or [dange rous] weapon, his lack of knowledge would prevent a court from finding him in violation of probation. When a probationer lacks knowledge that he is in possession of a gun or weapon, his possession cannot be

considered a willful violation of a probation condition. [Citation.]" ( People v. Moore,

supra, 211 Cal.App.4th at pp. 1 186-1187.) We conclude that the "no-dangerous-ordeadly-weapon" probation condition is sufficiently precise for appellant to know what is required of him. Follow, Harass, Molest Any Victim or Witness Appellant's due process challenge to the "[d]o not follow, harass, molest any victim or witness in this case, especially the victim[s ] Janet Workman, Robert Berg" is without merit. A probation condition is ove rbroad if it prohibits a substantial amount of constitutionally protected conduct ( People v. Rubalcava (2000) 23 Cal. 4th 322, 333) but there is no constitutional right to harass, mole st, follow, or stalk victims or witnesses.

As discussed in People v. Moore, supra, 211 Cal.App.4th 1179, pr obation conditions may require express modifications "[w]here a pr obation condition prohibits association with certain categories of persons, presence in cert ain types of areas, or possession of items that are not easily amendable to precise definition . . . ." ( Id. , at p. 1185.) This is not the

case here. 2

2 Appellant's citations deal with vague probation conditions affecting speech and association rights. ( In re Sheena K., supra, 40 Cal.4th at p. 889 [forbidding association with anyone disapproved of by probation officer]; In re Victor L. (2010) 182 Cal.App.4th 902, 912 [proba tion condition prohibiting mi nor from "remaining" in presence of any person where dang erous or deadly weapons exist]; People v. Lopez (1998) 66 Cal.App.4th 615, 628 [forbidding association with known or unknown gang members].)5 At the sentencing hearing, appellant was served with a protective order (§ 136.2) that prohibits him from harassing, thre atening, molesting, following, or stalking the victims. Appellant makes no claim that the protective order is overbroad or vague, even though it mirrors the probation condition not to "fo llow, harass, molest any victim

or witness in this case. . ." Appellant argues that the probation condition must be modified to read:

"Do not knowingly follow, harass, or molest any victim or witness in this case." There is no due process right to an express knowledg e provision where, as here, the probation condition provides fair warning of what conduct is prohibited. If the rule were otherwise, every probation order to "obey all laws" would have to be modified to read: "Do not knowingly violate any law." "Superfluity may not vitiate [Civ. Code § 3537], but neither does it enlighten." ( People v. Kim (2011) 193 Cal.App.4th 836, 847.) The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.6 Renee F. Corn, Judge

Superior Court County of Los Angeles

________________ ______________

Christian C. Buckley, under appo intment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Seni or Assistant Attorney General, Paul M. Roadarmerl, Jr., Supervising Deputy Attorney General, Daniel C. Ch ang, Deputy Attorney General, for Plaintiff and Respondent.