Filed 3/11/14 P. v. Gordon 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

ROY LYNN GORDON,

Defendant and Appellant.

 H039553

 (Santa Clara County

 Super. Ct. No. C1234643)

I. INTRODUCTION

Defendant Roy Lynn Gordon appeals after pleading no contest to making a 

criminal threat (Pen. Code, § 422)1and committing an assault by means of force likely to 

produce great bodily injury (§ 245, subd. (a)(4)). He was placed on probation with 

various conditions, and he was ordered to pay a number of fines and fees.

On appeal, defendant challenges the imposition of a $500 domestic violence fund 

fee (§ 1203.097, subd. (a)(5)(A)) and probation conditions that prohibit him from 

possessing or using alcohol or illegal drugs and from going to places where alcohol or 

illegal drugs are sold. We will modify the challenged probation conditions and affirm the 

judgment as modified.

 

1 All further statutory references are to the Penal Code unless otherwise indicated.
2

II. BACKGROUND

A. Facts Underlying the Charged Offenses2

At 8:34 p.m. on June 11, 2012, officers responded to the residence defendant 

shared with his wife. Defendant’s wife told police that defendant had scratched her on 

the cheek, slapped her twice, grabbed her neck and strangled her, then threw her on the 

bed, which caused her head to hit the wall. Defendant had also assaulted her on two prior 

occasions. Defendant’s wife later stated that during the incident, defendant had “told her 

not to scream or he would kill her by sticking a knife through her heart.”

B. Charges and Plea Agreement

On June 14, 2012, the District Attorney filed a complaint charging defendant with 

making a criminal threat (§ 422) and committing an assault by means of force likely to 

produce great bodily injury (§ 245, subd. (a)(4)). On January 7, 2013, defendant pleaded 

no contest to both charges. The terms of the plea agreement provided that defendant 

would be placed on probation, with “full domestic violence terms,” and that he would 

serve four months in county jail.

C. Probation Report

Defendant was interviewed by the probation officer on February 8, 2013. He was 

57 years old at the time. He discussed his financial situation, medical needs, and 

substance abuse history.

Defendant was receiving a Veteran’s disability pension of $1,025 per month. He 

planned to get a part-time job to supplement his pension. He thought he could find 

employment at a hardware store, since he had prior experience. He had last been 

employed by a construction firm, working as a carpenter from 1998 to 2005 for $25 per 

hour.

 

2

The facts are taken from the probation report.
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Defendant had recently been accepted by the Veteran’s Administration assisted 

housing program, so he would be able to rent an apartment for one-third of his net 

income. He would not be able to participate in that program if he spent 60 or more 

consecutive days in jail, so he was hoping to have his sentence divided into two blocks of 

time or participate in a jail alternative program.

Defendant had been diagnosed with mouth and throat cancer in 2010. He had 

undergone chemotherapy, radiation treatment, and surgery in which one-third of his 

tongue was removed. His cancer was in remission but was likely to recur. He had to 

undergo a PET scan every month and an MRI every two months. He took methadone on 

a daily basis due to the pain from his surgery. He was scheduled to undergo back surgery 

the following month. He planned to participate in a group to help him deal with 

posttraumatic stress disorder. He claimed to also have been diagnosed with depression.

Defendant acknowledged that he was an alcoholic. He had completed a 28-day 

residential treatment program in July of 2012. He had relapsed in September of 2012 and 

then completed a 90-day residential rehabilitation program. He had not relapsed again, 

and he continued to participate in a weekly aftercare group as well as AA/NA meetings.

The probation officer’s recommendations included imposition of a $400 domestic 

violence fund fee and various probation conditions. Proposed condition No. 16 provided: 

“The defendant shall not possess or consume alcohol or illegal substances or knowingly 

go to places where alcohol is the primary item of sale.” Proposed condition No. 17 

provided: “The defendant is not to 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.”

D. Sentencing

On April 19, 2013, the trial court suspended imposition of sentence and placed 

defendant on formal probation for three years. The court imposed a 120-day jail 

sentence, but the court did not remand defendant into custody because of his need for 
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medical treatment. The court awarded defendant 10 days of custody credits and set 

another hearing date “to figure out how to handle the remaining 110 days,” indicating it 

would “modify his sentence in a way he can serve his custody time in an appropriate 

manner.”

The trial court imposed a $500 domestic violence fund fee, as well as a number of 

other fines and fees. In addition, the trial court imposed probation conditions Nos. 16 

and 17, although the court used slightly different language than that proposed by the 

probation officer. The trial court ordered defendant not to “possess or consume alcohol 

or illegal substances or knowingly go to places where alcohol is the primary item of sale” 

and “not to possess or use illegal drugs or illegal controlled substances, or go anywhere 

where illegal drugs or non-prescribed controlled substances are used or sold.”

III. DISCUSSION

A. Domestic Violence Fund Fee

Defendant challenges the $500 domestic violence fund fee imposed pursuant to 

section 1203.097, subdivision (a)(5)(A). Defendant first claims the fee must be stricken 

because the record contains insufficient evidence of his ability to pay the fee. 

Alternatively, defendant claims the fee must be reduced to $400 because of the 

constitutional prohibition against ex post facto laws. Defendant contends that if either 

claim was forfeited by his failure to object below, he received ineffective assistance of 

counsel at trial.

1. Statutory Provisions

Section 1203.097, subdivision (a) requires certain terms of probation when 

“a person is granted probation for a crime in which the victim is a person defined in 

Section 6211 of the Family Code.” One of the requirements is stated in 

subdivision (a)(5)(A) as follows: “A minimum payment by the defendant of a fee of 

five hundred dollars ($500) to be disbursed as specified in this paragraph. If, after a 
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hearing in open court, the court finds that the defendant does not have the ability to pay, 

the court may reduce or waive this fee. If the court exercises its discretion to reduce or 

waive the fee, it shall state the reason on the record.”

At the time of defendant’s offenses on June 11, 2012, the minimum domestic 

violence fund fee was $400. (See Stats. 2010, ch. 132, § 1, eff. Aug. 13, 2010.) The 

minimum fee was increased to $500 effective January 1, 2013. (Stats. 2012, ch. 511, 

§ 1.)

2. Forfeiture

The Attorney General contends that by failing to object below, defendant has 

forfeited his ability-to-pay and ex post facto challenges. The Attorney General further 

argues that the trial court could impose the minimum domestic violence fee without 

making any finding of ability to pay, and that it was defendant’s burden to request a 

hearing and argue for imposition of a lesser fee.

Defendant argues that his ability-to-pay and ex post facto claims are not forfeited, 

and alternatively, that trial counsel was ineffective for failing to object on either ground 

and for failing to request an ability-to-pay hearing. Because deciding the ineffective 

assistance claims would require us to address the merits of defendant’s ability-to-pay and 

ex post facto claims, we will proceed to a discussion of those issues. (See People v. 

Osband (1996) 13 Cal.4th 622, 721.)

3. Ability to Pay

Defendant suggests that in determining whether the record contains substantial 

evidence of his ability to pay the $500 domestic violence fund fee, we should be guided 

by section 1203.1b, subdivision (e), which pertains to certain probation costs. That 

section defines “ ‘ability to pay’ ” as “the overall capability of the defendant to reimburse 

the costs [of probation],” and specifies that the factors “shall include, but shall not be 

limited to, the defendant’s: [¶] (1) Present financial position. [¶] (2) Reasonably 

discernible future financial position. In no event shall the court consider a period of more 
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than one year from the date of the hearing for purposes of determining reasonably 

discernible future financial position. [¶] (3) Likelihood that the defendant shall be able 

to obtain employment within the one-year period from the date of the hearing. [¶] 

(4) Any other factor or factors that may bear upon the defendant’s financial capability to 

reimburse the county for the costs.” (§ 1203.1b, subd. (e).)

Defendant contends that the record “indicates that his present financial position is 

poor,” pointing out that he had not worked “for over eight years.” He claims he has 

“bleak” prospects for obtaining employment due to his medical needs.

As noted above, the probation report reflected that defendant was receiving a 

Veteran’s disability pension of $1,025 per month and that he planned to get a part-time 

job to supplement his pension. Defendant was optimistic that he could find employment 

at a hardware store. His housing expenses would be low, since he had recently been 

accepted by the Veteran’s Administration assisted housing program and would need to

pay only one-third of his net income for rent. His concerns about being able to stay in the 

housing program were addressed by the trial court’s stated intent to work out a way for 

him to serve his remaining 110-day jail sentence “in an appropriate manner.” 

Defendant’s regular medical treatment consisted of monthly PET scans and MRI’s every 

two months. Defendant did not express any concern that his medical issues would 

preclude him from obtaining work.

Thus, the record showed that defendant had stable income, inexpensive housing, 

and employment prospects. Under the circumstances, substantial evidence supported an 

implied finding that defendant had the ability to pay a $500 domestic violence fund fee. 

(Cf. People v. Phillips (1994) 25 Cal.App.4th 62, 71 [ability-to-pay finding supported by 

substantial evidence where defendant expected to earn $800 per month, had low monthly 

expenses, and “did not offer any objections or corrections to the facts as stated in the 

probation officer’s report”].) Likewise, because of the evidence concerning defendant’s 

financial position, trial counsel could have reasonably determined that an objection on 
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ability-to-pay grounds would not have been successful, and there is no reasonable 

probability that an objection would have led to a more favorable result. (See Strickland 

v. Washington (1984) 466 U.S. 668, 694 (Strickland).)

4. Ex Post Facto

Defendant contends that imposition of the $500 domestic violence fund fee 

violated the state and federal constitutional prohibitions against ex post facto laws. (U.S. 

Const., art. I, § 10; Cal. Const., art. I, § 9.) According to defendant, the trial court must 

have applied the version of section 1203.097 that became effective on January 1, 2013—

after the commission of his offense—because it imposed a $500 fee rather than the $400 

minimum fee provided by the prior version of the statute.

“ ‘[T]he ex post facto clauses of the state and federal Constitutions are “aimed at 

laws that ‘retroactively alter the definition of crimes or increase the punishment for 

criminal acts.’ ” ’ [Citation.]” (People v. Alford (2007) 42 Cal.4th 749, 755.)

The parties agree that the domestic violence fund fee required by section 1203.097 

is punishment for a criminal act. (See People v. Delgado (2006) 140 Cal.App.4th 1157

[ex post facto clause precluded application of section 1203.097 to a defendant whose 

offenses predated the statute’s enactment].) However, the parties disagree on whether the 

trial court actually applied the newer version of section 1203.097, and thus whether the 

court increased defendant’s punishment, by imposing a $500 fee rather than the former 

minimum fee of $400.

Defendant’s claim rests on the premise that the trial court intended to impose the 

minimum permissible fee under section 1203.097, subdivision (a)(5)(A). The Attorney 

General asserts that the record does not support this claim and points out that the trial 

court could have imposed a $500 fee under the prior version of the statute, which simply 

set a “minimum payment” of $400. (See Stats. 2010, ch. 132, § 1, eff. Aug. 13, 2010.) 

The Attorney General further notes that under both versions of the statute, defendant was 

free to ask the court to impose a lesser amount.
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Because the trial court imposed the $500 domestic violence fund fee without 

making any comment indicating it was imposing the minimum amount, we must presume 

that the court in its discretion considered and rejected the imposition of the minimum fee 

of $400, and chose to impose a fee of $500. (See Evid. Code, § 664 [“[i]t is presumed 

that official duty has been regularly performed”].) Because there was no maximum 

authorized fee, and the trial court imposed a fee of $500, defendant was not subjected to 

increased punishment and the fee did not violate the ex post facto prohibition. Further, 

because the record does not indicate that the trial court intended to order the minimum 

domestic violence fund fee under section 1203.097, subdivision (a)(5)(A), defendant has 

not met his burden to show that if his trial counsel had objected, it was reasonably 

probable that the trial court would have imposed a lower fee. (See Strickland, supra,

466 U.S. at p. 694.)

B. Probation Conditions

Defendant contends probation condition No. 16 is unconstitutionally vague and 

that probation condition No. 17 is unconstitutionally vague and overbroad.

Because the trial court’s oral imposition of these conditions was somewhat 

different from the conditions in the probation report, we must first determine which 

conditions to review. In general, the oral pronouncement of judgment controls. (See

People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073.) Further, in this case the trial 

court did not expressly adopt the conditions as stated in the probation report, and there is 

no minute order containing the probation conditions. Thus, we will review the probation 

conditions as stated in the trial court’s oral imposition of judgment.

1. Overbreadth and Vagueness 

“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.]” (In re Sheena K. (2007) 40 

Cal.4th 875, 890.) “A probation condition ‘must be sufficiently precise for the 
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probationer to know what is required of him [or her], 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.]” (Ibid.)

2. Probation Condition No. 16

Probation condition No. 16, as stated in the trial court’s oral pronouncement of 

judgment, requires defendant not to “possess or consume alcohol or illegal substances or 

knowingly go to places where alcohol is the primary item of sale.”

Defendant contends this condition is vague to the extent it requires him not to 

“possess or consume alcohol or illegal substances,” because the condition does not 

require defendant “to know that he is in possession of or consuming these items.” 

Defendant expresses concern that “he could violate probation unwittingly.” The Attorney 

General agrees this condition “should be modified to include a knowledge requirement.”

In light of the Attorney General’s concession, we will modify probation condition 

No. 16 to provide as follows: “The defendant shall not knowingly possess or consume 

alcohol or illegal substances or knowingly go to places where alcohol is the primary item 

of sale.”

3. Probation Condition No. 17

Probation condition No. 17, as stated in the trial court’s oral pronouncement of 

judgment, requires defendant “not to possess or use illegal drugs or illegal controlled 

substances, or go anywhere where illegal drugs or non-prescribed controlled substances 

are used or sold.”

Defendant first contends this condition is vague because it does not require him to 

know that he is “possess[ing] or us[ing] illegal drugs or illegal controlled substances.” 

The Attorney General’s concession with respect to probation condition No. 16 appears to 

extend to this aspect of probation condition No. 17, and thus, we will add the word 

“knowingly” before the word “possess.”
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Defendant also contends probation condition No. 17 is vague and overbroad 

because it prohibits him from going “ ‘anywhere’ that drugs are sold.” He reasons, “this 

condition could be construed as prohibiting him from visiting entire cities or 

neighborhoods.” Defendant requests this court modify probation condition No. 17 “to 

specify a certain distance from any location where he knows illegal drugs are used or 

sold.” In his reply brief, defendant suggests the condition could also be modified to 

permit the probation officer to specify particular places defendant must avoid.

The Attorney General argues that as long as the condition includes a knowledge 

requirement, it will “fairly warn[] appellant to avoid places where he knows drugs are 

illegally sold or used.” The Attorney General cites to this court’s opinion in People v. 

Barajas (2011) 198 Cal.App.4th 748 (Barajas). In Barajas, this court considered a 

probation condition that provided: “ ‘You’re not to visit or remain in any specific 

location which you know to be or which the probation officer informs you to be an area 

of criminal street gang-related activity.’ ” (Id. at p. 754.) This court upheld that 

condition, reasoning, “The knowledge condition suffices to give defendant fair warning 

of what areas to avoid and ensures that he will not be found in violation due to a factual 

mistake, accident, or misfortune.” (Id. at p. 760.)

Here, although the probation officer recommended that probation condition No. 17 

bar defendant from going “anywhere he/she knows illegal drugs or non-prescribed 

controlled substances are used or sold” (emphasis added), the trial court did not include 

the word “knows” in its oral pronouncement of this condition. In light of the Attorney 

General’s implicit concession, we will modify probation condition No. 17 to include the 

word “knows.”

We do not believe the condition requires any further modification, however. “A 

probation condition should be given ‘the meaning that would appear to a reasonable, 

objective reader.’ [Citation.]” (People v. Olguin (2008) 45 Cal.4th 375, 382.) Further, a
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probation condition need not “be stated so exactingly as to preclude any possibility of 

misinterpretation or misapplication.” (Barajas, supra, 198 Cal.App.4th at p. 762.)

No reasonable, objective reader of probation condition No. 17 would believe 

defendant is prohibited from being in entire cities or neighborhoods. A reasonable, 

objective reader would understand the condition applies to specific locations such as 

residences, businesses, and particular public areas such as parks where he knows that 

illegal drugs or non-prescribed controlled substances are used or sold. Similarly, it is not 

necessary for the condition to specifically bar defendant from going anywhere that the 

probation officer informs him to be a location in which illegal drugs or non-prescribed 

controlled substances are used or sold. If the probation officer informs defendant that a 

particular location is one in which illegal drugs or non-prescribed controlled substances 

are used or sold, defendant will know that he may not go to that location.

For the above-stated reasons, we will modify probation condition No. 17 to 

provide as follows: “The defendant is not to knowingly possess or use illegal drugs or 

illegal controlled substances, or go anywhere he knows illegal drugs or non-prescribed 

controlled substances are used or sold.”

IV. DISPOSITION

Probation condition No. 16 is modified to provide as follows: “The defendant 

shall not knowingly possess or consume alcohol or illegal substances or knowingly go to 

places where alcohol is the primary item of sale.”

Probation condition No. 17 is modified to provide as follows: “The defendant is 

not to knowingly possess or use illegal drugs or illegal controlled substances, or go 

anywhere he knows illegal drugs or non-prescribed controlled substances are used or 

sold.”

As modified, the judgment is affirmed.
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___________________________________________

BAMATTRE-MANOUKIAN, ACTING P.J.

WE CONCUR:

__________________________

MIHARA, J.

__________________________

GROVER, J.