Filed 2/19/15 P. v. Chamu CA4/1 

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT 

DIVISION ONE 

STATE OF CALIFORNIA 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

JONATHAN CHAMU, 

 Defendant and Appellant. 

 D065710 

 (Super. Ct. No. SCE331920) 

 APPEAL from a judgment of the Superior Court of San Diego County, Daniel B. 

Goldstein, Judge. Affirmed as modified. 

 Jason L. Jones, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, 

Arlene A. Sevidal and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff 

and Respondent. 

 Jonathan Chamu was convicted of aggravated assault with a true finding on a gang 

enhancement. On appeal, he argues that four of his probation conditions are 
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unconstitutionally vague or overbroad. We modify two of the conditions, and as so 

modified, affirm the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND 

 On May 5, 2013, a group of males, including defendant, chased after and assaulted 

another male (Noe) while incarcerated at a juvenile detention facility. Defendant and two 

other males (Oscar and Sebastian) started chasing Noe as he was walking near the 

exercise area. A correctional officer ordered them to "drop" and "cover" but they 

continued chasing Noe. A fourth male (Luis) joined the chase from a different direction. 

Luis caught up to Noe and grabbed him, and Noe went to the ground. The four assailants 

repeatedly punched and kicked Noe until the correctional officers intervened with pepper 

spray and subdued them. 

 A prosecution gang expert testified that the four assailants, including defendant, 

were members of the Diablos gang, and the victim was a member of a rival gang. The 

expert opined the assault was for the benefit of the Diablos gang because attacking a rival 

gang member in concert, even in a custodial setting, shows the gang's strength, increases 

its status, and protects the gang from being targeted by other rivals. 

 Defendant was convicted of assault by means of force likely to produce great 

bodily injury, with a true finding that the offense was committed for the benefit of a gang. 

The court placed him on three years' formal probation and ordered that he serve 132 days 

in custody. 
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DISCUSSION 

I. General Principles Governing Probation Conditions

 A trial court has broad discretion to select probation conditions that foster 

rehabilitation and protect public safety. (People v. Leon (2010) 181 Cal.App.4th 943, 

948.) A condition that forbids conduct that is not itself criminal must be reasonably 

related to the defendant's crime or to preventing future criminality. (People v. Perez

(2009) 176 Cal.App.4th 380, 383.) To avoid unconstitutional overbreadth, a probation 

condition that imposes limitations on a person's constitutional rights must closely tailor 

those limitations to the purpose of the condition. (Leon, supra, at pp. 948-949.) 

 To avoid unconstitutional vagueness, the condition should be sufficiently precise 

for the probationer to know what is required and for the court to determine whether the 

condition has been violated. (People v. Leon, supra, 181 Cal.App.4th at p. 949.) The 

condition should be specific enough so that ordinary people can understand what conduct 

is prohibited. (In re Byron B. (2004) 119 Cal.App.4th 1013, 1018.) "A probation 

condition should be given 'the meaning that would appear to a reasonable, objective 

reader.'" (People v. Olguin (2008) 45 Cal.4th 375, 382.) The probation condition should 

be evaluated in its context, and only reasonable specificity is required. (People v. Lopez 

(1998) 66 Cal.App.4th 615, 630.) 

 On appeal, we independently review questions of unconstitutional overbreadth or 

vagueness. (People v. Martinez (2014) 226 Cal.App.4th 759, 765.) 
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II. Analysis 

 The four conditions challenged by defendant are included in a standardized 

probation form under a category entitled "gang conditions." (Capitalization omitted.) 

We consider each condition in turn. 

Condition 12. a.: Restriction on Appearing at Courthouse 

 Condition 12. a. states: "Do not appear in court or at the courthouse unless you 

are a party or witness in the proceedings." 

 Defendant argues this condition is overbroad because it restricts his constitutional 

right to access to the courts; it contains no language narrowing its application to gangrelated proceedings; and it does not set forth exceptions for access to the courts for lawful 

purposes apart from being a party or a witness. The Attorney General concedes the 

condition should be modified, and we agree. 

 This probation condition is designed to prevent gang members from intimidating 

witnesses at gang-related proceedings. (People v. Martinez, supra, 226 Cal.App.4th at p. 

767.) Several appellate courts have found similar courthouse restrictions overbroad 

because they did not confine the restriction to cases that involve gang intimidation 

concerns, and they did not permit access to the courts under legitimate circumstances 

other than being a party or witness. (Id. at pp. 765-768; People v. Leon, supra, 181 

Cal.App.4th at pp. 952-954; People v. Perez, supra, 176 Cal.App.4th at pp. 383-386.) 

We likewise find the condition here overbroad. 

 Defendant requests that we strike the condition instead of modifying it, contending 

his other probation conditions adequately prohibit him from intimidating persons at court 
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proceedings. In support, he cites conditions prohibiting him from threatening another 

person and requiring him to obey all laws (which would include the offense of witness 

intimidation defined in Penal Code section 136.1), and gang-related conditions 

prohibiting him from associating with gang members, exhibiting gang signs, and 

displaying or possessing gang-related items. 

 The trial court could reasonably determine that notwithstanding these other 

probation conditions, a condition specifically targeting gang intimidation at a courthouse 

is warranted given the acute problem of witness intimidation that impedes prosecution of 

gang-related crimes. Accordingly, we decline to strike the condition, but modify it to 

narrow it to gang-related proceedings, as follows: "Do not be present at any court 

proceeding or courthouse when you know there are proceedings involving either criminal 

street gang charges or a person associated with a criminal street gang as a member or 

witness, unless you are a party, defendant, or witness in a proceeding or have permission 

from the probation department." (See People v. Leon, supra, 181 Cal.App.4th at p. 954;

People v. Martinez, supra, 226 Cal.App.4th at pp. 767-768; In re E.O. (2010) 188 

Cal.App.4th 1149, 1157, fn. 5.) Under this modification, in the event defendant has a 

legitimate purpose to be at a courthouse while a gang-related proceeding is occurring 

even though he is not a party or witness, he may request and obtain permission from the 

probation department. (See People v. Leon, supra, 181 Cal.App.4th at pp. 953-954 

[probation officer may be given discretion to implement terms of probation, although this 

discretion should not be "unfettered" or " 'entirely open-ended' "]; People v. Pirali (2013) 
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217 Cal.App.4th 1341, 1350 [restricting access to Internet was not overbroad because 

Internet could be used upon approval of probation officer].) 

Condition 12. f.: Restriction on Possessing Weapons 

 Condition 12. f. states: "Do not knowingly own, transport, sell, or possess any 

weapon, firearm, replica firearm or weapon, ammunition, or any instrument used as a 

weapon." 

 Claiming unconstitutional vagueness and overbreadth, defendant asserts (1) the 

term "replica" is vague, (2) the phrase "any instrument used as a weapon" is vague, and 

(3) the condition is overbroad because it lacks an exception for temporary possession in 

lawful self-defense. 

Replica 

 To support his claim that the word replica is vague, defendant cites two dictionary 

definitions, stating that replica is defined (1) in the Collins English dictionary as " 'an 

exact copy or reproduction, especially on a smaller scale,' " and (2) in the MerriamWebster dictionary as " 'an exact or very close copy of something.' " He posits that the 

former encompasses small objects shaped like weapons including paperweights or plastic 

swords, whereas the latter is limited to "objects faithfully reproduced on a full scale." He 

contends the condition is designed to encompass objects that a victim might mistakenly 

think are real weapons, and that instead of the term "replica" the condition should state 

any " 'instrument or device which a reasonable person would believe to be capable of 

being used as a firearm or weapon.' " 
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 This claim of constitutional vagueness is unavailing. The probation condition 

prohibits weapon possession, and in this context reasonable persons would understand 

that a replica simply means something that looks like a weapon. No reasonable person 

would construe the condition as applying to a small-scale model that did not look 

anything like a real weapon, regardless of a reference to " 'smaller scale' " in a dictionary. 

Any Instrument Used as a Weapon 

 Defendant argues the phrase "any instrument used as a weapon" is vague because 

the term "used" could mean an instrument defendant intends to use as a weapon, or any 

instrument that is sometimes capable of being used as a weapon. He posits that the latter 

interpretation would "prohibit the possession of such a wide array of objects that 

compliance would be impossible," citing for example, his possession of a bat on the way 

to baseball practice. Defendant requests the condition be modified to state " 'any 

instrument used by the probationer as a weapon.' " (Italics omitted.) 

 Again, because this condition is clearly directed at prohibiting weapon possession, 

when read in context, reasonable persons would understand that "any instrument used as 

a weapon" refers to an item that is being used, or intended to be used, as a weapon, not 

any object that might conceivably be used as a weapon but with no circumstances 

suggesting such use was intended. (See In re R.P. (2009) 176 Cal.App.4th 562, 569-

570.) Consistent with this, the phrase "used as a weapon" on its face excludes items that 

are merely capable of being used as a weapon but are not actually being used as such. 

Further, because the condition requires defendant to have knowledge that the instrument 

is used as a weapon, defendant will not be subjected to a probation violation unless he 
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knows the instrument was intended for use as a weapon (i.e., possession of a bat in the 

context of a group of gang members on the way to a confrontation, not on the way to 

baseball practice). There is no need for modification. 

Possession for Self-defense 

 Defendant argues the condition prohibiting weapon possession is overbroad unless 

it is modified to include an exception for possession that " 'is justified because the firearm 

or weapon is used in accordance with the law of self-defense.' " Defendant recognizes 

that he should not be allowed to preemptively carry a weapon based on "vague concerns 

for his safety," but rather contends "should he find himself in a real emergency where his 

life is under immediate threat, he should not be prohibited from defending himself from 

that threat even where doing so requires the use of a weapon or an improvised weapon." 

 We reject this contention of constitutional overbreadth. When a defendant 

commits a violent crime, a strict condition precluding possession of weapons is extremely 

important to public safety. Given the importance of clearly communicating to defendant 

that he not possess any weapons, it is reasonable to exclude a reference to self-defense to 

ensure that he does not think he can carry a weapon in some circumstances in anticipation 

of the possible need for self-defense. We are satisfied that no reasonable law 

enforcement official or court will interpret the proscription on weapon possession to 

extend to a fleeting possession of a weapon in the event, for example, defendant is 

assaulted and he temporarily seizes an object to use as a weapon in self-defense. The 

omission of a reference to self-defense in the straightforward proscription against weapon 

possession does not rise to the level of constitutional overbreadth. 
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Condition 12.g.: Restriction on Being in the Presence of Weapons 

 Condition 12. g. states: "Do not remain in any building, vehicle or in the presence 

of any person where you know a firearm, deadly weapon, or ammunition exists." 

 Defendant asserts this condition is overbroad because it prohibits him from being 

at any location where there are armed security personnel, including, for example, 

government buildings or political rallies. He contends this condition improperly restricts 

his constitutional rights of association and to access the courts, and the condition should 

be modified to restrict his presence at locations where weapons are illegally present. We 

agree. Given the widespread presence of armed security personnel, the condition unduly 

restricts defendant's access to a broad array of locales that do not create a risk that he will 

engage in criminality, thus infringing on his constitutional liberty interests with no 

relationship to deterring criminal conduct. Further, the probation condition appears to be 

designed to prohibit defendant from being in situations where he might be tempted to 

participate in criminal activity or gain access to weapons in the possession of others. 

Such concerns are highly unlikely to arise in circumstances where the weapons are 

legitimately possessed. 

 The Attorney General's citation to In re Victor L. (2010) 182 Cal.App.4th 902 does 

not persuade us otherwise. Victor L. added a scienter requirement to a similar weaponspresence restriction (id. at pp. 912-913), but did not address the issue of overbreadth 

based on application of the restriction when the weapons are lawfully possessed. 
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 Accordingly, we modify the condition to state: "Do not remain in any building, 

vehicle or in the presence of any person where you know a firearm, deadly weapon, or 

ammunition illegally exists." 

Condition 12. i. Restriction on Possession of Gang-Related Items 

 Condition 12. i. states: "Do not knowingly wear, display, use, or possess any 

insignias, photographs, emblems, badges, buttons, caps, hats, jackets, shoes, flags, 

scarves, bandanas, shirts, or other articles of clothing evidencing affiliation 

with/membership in the Diablo gang." 

 Defendant argues this condition is unconstitutionally vague and overbroad because 

although it contains a scienter requirement for his possession of the items, it does not 

contain a scienter requirement for the fact that they are gang-related. To the contrary, 

reasonable persons would interpret the restriction on defendant's knowing possession of 

items evidencing gang affiliation to mean he must both (1) know he has the items, and (2) 

know they are gang-related. There is nothing in the language of the condition suggesting 

that defendant will have violated the condition if he knowingly possesses an item that he 

has no basis to know is gang-related. The whole purpose of the condition is to prohibit 

his possession of gang-related materials, and clearly the knowledge requirement extends 

to this core purpose. There is no need to modify the condition. 

DISPOSITION 

 We modify probation condition 12. a. to state: "Do not be present at any court 

proceeding or courthouse when you know there are proceedings involving either criminal 

street gang charges or a person associated with a criminal street gang as a member or 
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witness, unless you are a party, defendant, or witness in a proceeding or have permission 

from the probation department." 

 We modify probation condition 12. g. to state: "Do not remain in any building, 

vehicle or in the presence of any person where you know a firearm, deadly weapon, or 

ammunition illegally exists." 

 The trial court is directed to forward a copy of the corrected conditions to the 

probation authorities. As so modified, the judgment is affirmed. 

HALLER, J. 

WE CONCUR: 

NARES, Acting P. J. 

MCINTYRE, J.