California Court of Appeal May 6, 2015 No. E060382Unpublished
Filed 5/6/15 P. v. Rushing CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E060382
v. (Super.Ct.No. FWV1300146)
LISA GAYE RUSHING, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson,
Judge. Affirmed as modified.
C. Matthew Missakian, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Lynne G. McGinnis and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and
Respondent.
1
A jury found defendant and appellant Lisa Gaye Rushing guilty of two counts of
commercial burglary (Pen. Code, § 459; counts 1 & 3)1 and two counts of petty theft
with a prior theft-related conviction (§§ 484, subd. (a), 666, subd. (a); counts 2 & 4).
Defendant was sentenced to a total term of three years eight months pursuant to
section 1170, subdivision (h), with one year six months to be served in county jail and
two years two months to be completed on mandatory supervision on various terms and
conditions. On appeal, defendant argues that (1) her conviction on count 3 must be
reversed because a significant mistake was made on the verdict form rendering the jury’s
intention unclear; and (2) two of her conditions of mandatory supervision must be
stricken because they are unconstitutionally overbroad and vague. We modify one of
defendant’s supervision conditions, and reject her remaining contentions and affirm the
judgment.
I
FACTUAL BACKGROUND
On July 27, 2012, Kristen Quattrocchi, the general manager of an ULTA
cosmetics store in Chino, viewed the store’s surveillance video due to a theft that
occurred on July 26, 2012. On the video, an adult woman, later identified as defendant,
and a girl, identified as defendant’s 12-year-old daughter, can be seen walking into the
store, and defendant taking bottles of perfume off a shelf and handing them to her
daughter. Defendant’s daughter then places the perfume bottles into a purse. Defendant
1 All future statutory references are to the Penal Code unless otherwise stated.
2
and her daughter take about 12 perfume bottles and leave the store without paying for any
of the items.
On November 9, 2012, Quattrocchi noticed the Christian Dior perfume section of
the ULTA store looked surprisingly empty. She then viewed the store’s surveillance
video from the prior day and saw defendant and her daughter taking perfume bottles off
the shelf and placing them in a bag. From the location of the shelves, Quattrocchi
determined they took Dior J’Adore, Estee Lauder Beautiful, and Estee Lauder Sensuous
perfumes.
On November 30, 2012, Quattrocchi saw defendant and her daughter in the
fragrance section of the ULTA store. Quattrocchi recognized defendant’s daughter as the
girl in the video based on her distinctive bright pink Hello Kitty purse. Quattrocchi also
recognized defendant as the adult woman in the video. Quattrocchi called the police.
Later, Quattrocchi watched the store’s surveillance video from November 30, and saw
defendant and her daughter walking around the perfume section and taking perfumes
from the Estee Lauder section.
Law enforcement subsequently arrived and detained defendant and her daughter.
Inside defendant’s purse, an officer found three new, sealed bottles of perfume—one
bottle of Estee Lauder Sensuous and two bottles of Estee Lauder Beautiful. Quattrocchi
confirmed the perfume bottles found in defendant’s purse were taken from the ULTA
store.
3
The officer also made contact with defendant’s adult daughter, who was waiting in
a car in the parking lot. A search of defendant’s cell phone showed two text messages
between defendant and her adult daughter, in which they discussed an eBay account
defendant maintained and perfumes. The eBay records revealed that defendant sold the
stolen perfumes online for below retail price.
II
DISCUSSION
A. Vacate Conviction Due to Unclear Intention
Defendant contends that her conviction on count 3 for commercial burglary must
be vacated because a significant mistake on the verdict form renders the jury’s intention
unclear. Specifically, defendant states that the verdict form for count 3 “asked the jury to
render a verdict as to the crime of ‘second-degree commercial burglary . . . in violation of
Penal Code Section 484(a),’ ” but section 484, subdivision (a), relates to petty theft, not
burglary. Defendant reasons that the ambiguity must have misled the jury and that “it is
not unmistakably clear the jury intended to find [her] guilty of commercial burglary.”
Defendant believes that since “it is impossible to determine whether the jury actually
reached a verdict on the essential elements of commercial burglary,” the error is
structural and reversal on count 3 is warranted.
The People respond defendant’s claim is forfeited on appeal because defendant did
not object to the wording of the verdict form. In the alternative, the People maintain the
clerical error here was harmless given the evidence in this case, the language of the
4
information, the language of the other verdict forms, the court’s jury instructions, and the
arguments of counsel. We are inclined to agree with the People.
“An objection to jury verdict forms is generally deemed waived if not raised in the
trial court.” (People v. Toro (1989) 47 Cal.3d 966, 976, fn. 6, overruled on other grounds
in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3; see People v. Jones (2003) 29
Cal.4th 1229, 1259 [failure to object to assertedly ambiguous verdict form]; People v.
Bolin (1998) 18 Cal.4th 297, 330 (Bolin) [defendant forfeited claim of error related to
verdict form that contained incorrect code section reflecting prior serious felony
conviction on a section 667, subdivision (a) finding and, in any event, the erroneous form
used by the jury to reflect their finding was not prejudicial]; see also People v. Harders
(1962) 201 Cal.App.2d 795, 798-799 [failure of counsel to object to verdict form
identifying charged crime for which guilty verdict was returned by the wrong count
number].) However, a reviewing court may in its discretion consider the challenge when
it raises an issue that implicates the defendant’s constitutional rights and when defense
counsel was arguably ineffective for failing to raise it below. (People v. Abbaszadeh
(2003) 106 Cal.App.4th 642, 649-650; see People v. Osband (1996) 13 Cal.4th 622, 689
[noting that, pursuant to section 1259, a “claim of instructional error may be considered
for [the] first time on appeal if ‘the substantial rights of the defendant were affected’ by
the asserted error”]; People v. Radil (1977) 76 Cal.App.3d 702, 710 [where no objection
is made at trial, “the form of the verdict is to be regarded as immaterial where,
5
considering the form of the information and the plea of the defendant, the intention to
convict of the crime charged is unmistakably expressed”].)
Here, defendant acknowledges that she did not object to the defect in the
challenged verdict form, but urges the error affected her substantial rights. We disagree.
The defect in the verdict form on count 3 appears to be one of a clerical error. (See
People v. Camacho (2009) 171 Cal.App.4th 1269, 1274 (Camacho); People v. Trotter
(1992) 7 Cal.App.4th 363, 370 (Trotter).) As such, defendant’s claim is forfeited on
appeal.
But even if we assume that the defect in the challenged verdict form affected her
substantial rights, defendant’s claim fails on its merit. The form of a verdict is
immaterial provided the intention to convict of the crime charged is unmistakably
expressed. (Camacho, supra, 171 Cal.App.4th at pp. 1272-1273; People v. Jones (1997)
58 Cal.App.4th 693, 710 [Fourth Dist., Div. Two].) A verdict must be given “ ‘ “a
reasonable intendment and be construed in light of the issues submitted to the [finder of
fact] and the instructions of the court.” ’ ” (People v. Jones, supra, at p. 710; Camacho,
supra, at p. 1272.) Technical defects or clerical errors in a verdict may be disregarded if
the jury’s intent to convict of a specified offense is unmistakably clear, and the accused’s
substantial rights suffered no prejudice. (Bolin, supra, 18 Cal.4th at p. 331; Camacho,
supra, at p. 1272.) The jury’s intent may be determined with reference to the information
and the court’s instructions to the jury. (People v. Paul (1998) 18 Cal.4th 698, 707.)
6
In People v. Escarcega (1969) 273 Cal.App.2d 853, the jury verdict form
contained the wrong Penal Code reference, but the jury was instructed on the correct
offense. The Court of Appeal concluded that “[i]n giving effect to the manifest intention
of the jury, the clerical error will be disregarded. [Citation.]” (People v. Escarcega,
supra, at p. 858.)
We have no difficulty here in determining that the jury intended to find defendant
guilty of second degree commercial burglary and that the reference to section 484,
subdivision (a), was inadvertent. First, the verdict form specifically states that second
degree commercial burglary is the offense of which defendant was found guilty.2
Though the form refers to section 484, subdivision (a), which is petty theft, we think it far
more likely that an inadvertent error will occur with the statute number than with the
offense that is identified by name. The statute number has no meaning to jurors, who
almost certainly consider only the name of the offense.
Second, the information alleged three counts of second degree commercial
burglary with one occurring on November 30, 2012 (count 1); one occurring on
November 8, 2012 (count 3); and one occurring on July 26, 2012 (count 5). The
information also alleged three counts of petty theft with three prior theft-related
convictions with count 2 alleged to have been committed on November 30, 2012, count 4
2 Specifically, the challenged verdict form stated, “We, the jury . . . find the defendant . . . GUILTY of the crime of SECOND-DEGREE COMMERCIAL BURGLARY on or about November 8, 2012, in violation of Penal Code Section 484(a) as charged in Count III of the Information.”
7
on November 8, 2012, and count 6 on July 26, 2012. In regard to count 3, the
information specifically alleged that “[o]n or about November 8, 2012 . . . the crime of
SECOND DEGREE COMMERCIAL BURGLARY, in violation of PENAL CODE
SECTION 459, a felony, was committed by [defendant], who did enter a commercial
building occupied by Ulta with the intent to commit larceny and felony.” The
information alleged a single violation of second degree commercial burglary committed
by defendant on November 8, 2012.
Third, the jury was instructed pursuant to CALCRIM No. 1700 that “The
defendant is charged in Counts 1, 3, and 5 with burglary.” The jury was also instructed
with CALCRIM No. 3515, which specified that “The defendant . . . is charged in Count
III of the Information with the crime of SECOND-DEGREE COMMERCIAL
BURGLARY on or about November 8, 2012, in violation of Penal Code section 459.”
That instruction also informed the jury that on each of the three days in question (July 26,
2012, November 8, 2012, and November 30, 2012), it was alleged that defendant had
committed one count of second degree commercial burglary and one count of petty theft.
That instruction further clarified that the verdict forms would ask the jurors to make the
corresponding findings as to each count.
Moreover, during argument, the prosecutor informed the jury that “Counts 1, 3,
and 5 are burglary.” The prosecutor also told the jury that burglary is “a little different
than petty theft. It’s about entering, crossing the threshold. Entering the building with
the intent to steal, that’s what a burglary is there for. Petty theft is about the actual taking
8
of the item, okay.” The prosecutor also reminded the jury, referencing the offense of
burglary, “This is November 8th. Cross the threshold, you had intent to steal, it’s over. It
doesn’t matter what happened.” The prosecutor’s argument here was not at all
inconsistent with the jury instructions, which clearly set forth the elements of the charged
offenses. (Trotter, supra, 7 Cal.App.4th at pp. 369-370; see People v. Jones (2003) 29
Cal.4th 1229, 1259 [argument of counsel considered in determining the intent of jury in
rendering guilty verdict using an ambiguous verdict form]; Camacho, supra, 171
Cal.App.4th at p. 1274 [argument of counsel considered in determining the intent of jury
in rendering guilty verdict using an inaccurate verdict form].)
The evidence is uncontradicted that defendant entered the ULTA store on
November 8, 2012, and stole perfume. The record provided the jury with no rational
basis, by way of argument or evidence, to find defendant guilty of more than one count of
petty theft on November 8, 2012. Rather, the record is unmistakably clear that defendant
committed one count of burglary and one count of petty theft on November 8, 2012. The
jury was not misguided by the erroneous verdict form. The jury asked for no explanation
on the discrepancy between the cited Penal Code section and the description of the
offense in the verdict form, assuming the jury even noticed the discrepancy. Ultimately,
the jury returned a verdict of second degree commercial burglary on count 3 as charged.
In doing so, the jury necessarily found beyond a reasonable doubt that defendant entered
the ULTA store with the intent to steal perfume.
9
Under these circumstances, the jury’s intent to find defendant committed second
degree commercial burglary is unmistakable. (See Camacho, supra, 171 Cal.App.4th at
pp. 1272-1273; People v. Jones, supra, 58 Cal.App.4th at p. 710.) For the same reasons,
the flaw in the verdict form is harmless beyond a reasonable doubt. (See People v. Jones,
supra, 29 Cal.4th at p. 1260.)
B. Mandatory Supervision Conditions
Defendant also argues that two of her mandatory supervision conditions should be
modified because they are unconstitutionally vague and overbroad and violate her
constitutional rights to travel and due process. The People argue defendant forfeited her
challenge to these conditions because she failed to object at the sentencing hearing and
they are based on an assertion that the conditions are unreasonable. In the alternative, the
People assert that the notice condition and search condition are not overbroad and vague
and do not infringe on her constitutional rights.
Among other terms and conditions of mandatory supervision, the court included
the following requirements: “Keep the probation officer informed of place of residence
and cohabitants and give written notice to the probation officer twenty-four (24) hours
prior to any changes. Prior to any move provide written authorization to the Post
Office to forward mail to the new address.” (Condition No. 8) “Permit visits and
searches of places of residence by agents of the Probation Dept. and/or law enforcement
for the purpose of ensuring compliance with the terms and conditions of probation; not do
anything to interfere with this requirement, or deter officers from fulfilling this
10
requirement, such as erecting any locked fences/gates that would deny access to
probation officers, or have any animals on the premises that would reasonably deter,
threaten the safety of, or interfere with, officers enforcing this term.” (Condition No. 9)
Defendant did not object to these supervision conditions, and indicated that she had gone
over the terms with her attorney and that she understood all of the terms and conditions of
her supervision.
As an initial matter, we assess the validity and reasonableness of conditions of
mandatory supervision using the same standard applied to conditions associated with
other forms of supervised release, including probation or parole. (People v. Martinez
(2014) 226 Cal.App.4th 759, 762-764 [Fourth Dist. Div. Two].) The purposes and goals
of both probation and supervised release are comparable: to provide an opportunity for
successful reentry into the community. (§ 1170, subd. (a)(2); see People v. Hackler
(1993) 13 Cal.App.4th 1049, 1058 [“The purpose of probation is rehabilitation.”].)
In general, trial courts are given broad discretion in fashioning terms of probation
or supervised release, in order to foster the reformation and rehabilitation of the offender,
while protecting public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120; People
v. Urke (2011) 197 Cal.App.4th 766, 774.) Thus, the imposition of a particular condition
of probation or supervised released is subject to review for abuse of that discretion. “As
with any exercise of discretion, the court violates this standard when it imposes a
condition of probation that is arbitrary, capricious or exceeds the bounds of reason under
the circumstances. [Citation.]” (People v. Jungers (2005) 127 Cal.App.4th 698, 702.)
11
However, constitutional challenges are reviewed under a different standard. Whether a
term of probation is unconstitutionally vague or overbroad presents a question of law,
which we review de novo. (In re J.H. (2007) 158 Cal.App.4th 174, 183; In re Shaun R.
(2010) 188 Cal.App.4th 1129, 1143.)
Where a claim that a probation condition is facially overbroad and violates
fundamental constitutional rights is based on undisputed facts, it may be treated as a pure
question of law which is not forfeited by failure to raise it in the trial court. (In re Sheena
K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.); People v. Welch (1993) 5 Cal.4th 228,
235.) As the court in Sheena K. explained, the doctrine of forfeiture on appeal does not
apply to challenges to probation conditions based on “facial constitutional defects” that
do “not require scrutiny of individual facts and circumstances.” (Sheena K., at pp. 885,
886.) However, the forfeiture doctrine does apply if the objection involves a
discretionary sentencing choice or unreasonable probation conditions “premised upon the
facts and circumstances of the individual case.” (Id. at pp. 885, 888.)
Here, defendant claims that even though she did not object to the challenged
conditions at sentencing, her vagueness and overbreadth arguments present a facial
constitutional challenge with pure questions of law based on undisputed facts and, thus,
can be properly raised on appeal for the first time. To the extent defendant’s challenges
raise pure questions of law, we will reach the merits of defendant’s claim. We focus only
on the constitutionality of the condition, not whether it is reasonable as applied to
defendant. (See People v. Lent (1975) 15 Cal.3d 481, 486 [test for reasonableness of
12
probation conditions].) By failing to object below, defendant has forfeited all claims
except a challenge “based on the ground the condition is vague or overbroad and thus
facially unconstitutional.” (Sheena K., supra, 40 Cal.4th at p. 878.)
Trial courts must fashion precise supervision conditions so the probationer knows
what is required. (Sheena K., supra, 40 Cal.4th at p. 890.) A condition is invalid if it is
“ ‘ “ ‘so vague that men of common intelligence must necessarily guess at its meaning
and differ as to its application.’ ” ’ ” (People v. Quiroz (2011) 199 Cal.App.4th 1123,
1128 [Fourth Dist., Div. Two] (Quiroz).) Nor may a court impose overbroad supervision
conditions. Where a condition impinges on a constitutional right, it must be carefully
tailored and reasonably related to the compelling state interest in reformation and
rehabilitation. (Quiroz, supra, at p. 1128; Sheena K., supra, 40 Cal.4th at p. 890.) A
“court may leave to the discretion of the probation officer the specification of the many
details that invariably are necessary to implement the terms of probation. However, the
court’s order cannot be entirely open-ended.” (People v. O’Neil (2008) 165 Cal.App.4th
1351, 1358-1359 (O’Neil) [probation condition forbidding defendant from associating
with all persons designated by his probation officer was “overbroad and permit[ted] an
unconstitutional infringement on defendant’s right of association”].) “If a probation
condition serves to rehabilitate and protect public safety, the condition may ‘impinge
upon a constitutional right otherwise enjoyed by the probationer, who is “not entitled to
the same degree of constitutional protection as other citizens.” ’ ” (O’Neil, supra, 165
Cal.App.4th at p. 1355, quoting People v. Lopez (1998) 66 Cal.App.4th 615, 624.)
13
1. Condition No. 8
Defendant contends that condition No. 8 is overbroad and unduly infringes on her
constitutional right to travel and relocate. She asserts the condition is overbroad because
it requires her “to give notice of events she may not know are about to happen,” such as
“homelessness, instability, and unpredictable housing arrangements,” which “are a fact of
life, especially for many convicts, probationers, parolees, and those under mandatory
supervision.” She claims that she may have to relocate—a constitutionally guaranteed
right to travel—“with little warning, and find it impossible to notify her probation officer
24 hours in advance.” She believes that the residency condition must be modified to
include “or as soon thereafter as is reasonably possible” (italics added) after the
language “24 hours in advance.”
The People do not specifically address defendant’s concerns but assert that “[a]
probation officer supervising someone like [defendant] must reasonably know where and
with whom she resides.” Relying on People v. Olguin (2008) 45 Cal.4th 375 (Olguin),
the People argue that “[i]f it is permissible to place restrictions on a probationer’s place
of residence, it is certainly permissible to require that she give 24 hours’ notice of any
contemplated changes to her address or her roommates.”
The People’s reliance on Olguin is misplaced because our Supreme Court in
Olguin did not address the precise issue raised by defendant here. In Olguin, the
Supreme Court reviewed a condition of probation that required the probationer to inform
the probation officer of any pets owned by the probationer and to inform the probation
14
officer within 24 hours of any changes. (Olguin, supra, 45 Cal.4th at p. 380.) The
Supreme Court found that although the condition was not related to the crime the
defendant committed, it was reasonably related to the supervision of defendant and,
therefore, to his rehabilitation and future criminality. The court held, “The condition
requiring notification of the presence of pets is reasonably related to future criminality
because it serves to inform and protect a probation officer charged with supervising a
probationer’s compliance with specific conditions of probation . . . . [T]o ensure that a
probationer complies with the terms of his or her probation and does not reoffend, a
probation officer must be able to properly supervise that probationer. Proper supervision
includes the ability to make unscheduled visits and to conduct unannounced searches of
the probationer’s residence. . . . Therefore, the protection of the probation officer while
performing supervisory duties is reasonably related to the rehabilitation of a probationer
for the purpose of deterring future criminality.” (Id. at p. 381.)
Here, defendant does not challenge a probation officer’s supervisory duties but the
24-hour notice provision as being overbroad and infringing on her right to travel. We do
see the benefit of the probation officer being informed if defendant’s residence has
changed. Contrary to defendant’s assertions, condition No. 8 as written is not unduly
overbroad and it does not restrict her right to travel. It merely imposes a duty on
defendant to notify her probation officer 24 hours prior to any change in residence.
Defendant’s arguments regarding the 24-hour notice provision relate to reasonableness.
However, because she failed to object to the condition at the sentencing hearing and
15
indicated that she understood her supervision conditions, defendant forfeited her
reasonableness challenge to condition No. 8.
2. Condition No. 9
Defendant also contends condition No. 9 is improperly overbroad and vague
because it prohibits her from doing “anything ‘to interfere’ with searches,” and it is not
clear that “to interfere” requires a deliberate intent. She also argues that the condition
“unreasonably restricts [her] legitimate interest in ensuring the security of herself and her
family,” and that the “ambiguous language” of the condition may bring innocent conduct
subject to violation. She believes the condition should be modified to prohibit her from
knowingly deterring or interfering with probation or police officers.
As previously noted, “A probation condition ‘must be sufficiently precise for the
probationer to know what is required of him, 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.]” (Sheena K., supra, 40 Cal.4th at p. 890.) “[T]he underpinning of a
vagueness challenge is the due process concept of ‘fair warning.’ [Citation.] The rule of
fair warning consists of ‘the due process concepts of preventing arbitrary law
enforcement and providing adequate notice to potential offenders’ [citation], protections
that are ‘embodied in the due process clauses of the federal and California Constitutions.
[Citation.]” (Sheena K. at p. 890, quoting People v. Castenada (2000) 23 Cal.4th 743,
751.)
16
“The vagueness doctrine bars enforcement of ‘ “a statute which either forbids or
requires the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application.” [Citations.]’ [Citation.]
A vague law ‘not only fails to provide adequate notice to those who must observe its
strictures, but also “impermissibly delegates basic policy matters to policemen, judges,
and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application.” [Citation.]’ [Citation.] In deciding the
adequacy of any notice afforded those bound by a legal restriction, we are guided by
the principles that ‘abstract legal commands must be applied in a specific context,’
and that, although not admitting of ‘mathematical certainty,’ the language used must have
‘ “ reasonable specificity.” ’ [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890, italics
omitted.)
“Proper supervision includes the ability to make unscheduled visits and to conduct
unannounced searches of the probationer’s residence. Probation officer safety during
these visits and searches is essential to the effective supervision of the probationer and
thus assists in preventing future criminality.” (Olguin, supra, 45 Cal.4th at p. 381.)
Officers must have ready access to the probationer’s residence to verify the probationer’s
compliance and prevent future criminality such as the sale of stolen goods. Of course,
locked gates and fences, and potentially dangerous animals create unreasonable obstacles
to monitoring probationers. (Ibid., [“[a]nimals can be unpredictable and potentially
17
dangerous when faced with a stranger in their territory, and some pose a great or even
life-threatening hazard to persons in these circumstances”].)
Here, the condition does not prohibit defendant from locking her doors. It only
prohibits her from erecting locked fences and gates, impediments beyond the house that
might delay access to the residence. In addition, the term “interfere” is not ambiguous
and can be given a reasonable and practical meaning. (Olguin, supra, 45 Cal.4th at
p. 382 [“A probation condition should be given ‘the meaning that would appear to a
reasonable, objective reader.’ ”].) A reasonable interpretation of the challenged
language, “not do anything to interfere,” makes it clear that defendant will be prohibited
from doing anything to impede or deter the probation officer in the exercise of his or her
duties. Were defendant permitted to erect locked gates and fences, it would render the
search and check terms nugatory by adding unreasonable additional obstacles to
probation officers’ execution of their duties.
Although we believe the knowledge requirement is implicit in the condition, to
prevent arbitrary enforcement and provide clear notice, we will modify the term to
include an explicit knowledge requirement. (See Sheena K., supra, 40 Cal.4th at pp. 891-
892.) We modify probation condition No. 9 as follows: “Permit visits and searches of
places of residence by agents of the Probation Department and/or law enforcement for the
purpose of ensuring compliance with the terms and conditions of probation; not
knowingly do anything to interfere with this requirement, or knowingly deter officers
from fulfilling this requirement, such as erecting any locked fences/gates that would deny
18
access to probation officers, or have any animals on the premises that would reasonably
deter, threaten the safety of, or interfere with, officers enforcing this term.”
III
DISPOSITION
Mandatory supervision condition No. 9 is modified to provide: “Permit visits and
searches of places of residence by agents of the Probation Department and/or law
enforcement for the purpose of ensuring compliance with the terms and conditions of
probation; not knowingly do anything to interfere with the requirement, or knowingly
deter officers from fulfilling this requirement, such as erecting any locked fences/gates
that would deny access to probation officers, or have any animals on the premises that
would reasonably deter, threaten the safety of, or interfere with, officers enforcing this