People v. Schneider CA1/1

Filed 1/12/16 P. v. Schneider CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A144612 v. MICHAEL THEODORE SCHNEIDER, (Sonoma County Super. Ct. No. SCR-658220) Defendant and Appellant.

In this appeal we are once again asked to review a probation condition and decide whether it is vague, needing modification by this court. Eventually, this topic du jour of criminal appeals will be resolved by our Supreme Court when it decides People v. Hall (2015) 236 Cal.App.4th 1124, review granted September 9, 2015, S227193. Until that happens, these challenges will remain on appellate dockets. In this case, we affirm the condition precluding possession of weapons by appellant. Appellant was charged in a criminal complaint filed December 23, 2014, with attempting to deter by means of threats and violence an executive officer from performing a duty, a violation of Penal Code section 691 (count 1), and resisting, delaying, and obstructing a peace officer in the attempt to discharge a duty, a violation of section 148, subdivision (a) (count 2).

1 Unless otherwise stated, all statutory references are to the Penal Code.

Appellant entered a plea of no contest to a felony violation of section 69 on January 20, 2015. On February 26, 2015, the trial court sentenced appellant to three years’ probation and ordered him to serve six months in the county jail as a condition of probation. Count 2 was dismissed. The court orally stated the challenged condition in the following manner: “You have been convicted of a felony, you may not use or possess any firearms or ammunition or other weapons, but as to firearms and ammunition there is a lifetime ban with regard to your possession or control of those weapons and ammunition.” The clerk’s minutes of the sentencing hearing states the following language on the condition challenged: “Defendant not to own, possess, have under custody or control any firearms or ammunition pursuant [to] Federal & State Law. [¶] Possess NO weapons.” Appellant filed an appeal on March 18, 2015. DISCUSSION Appellant contends the probation condition ordering him to possess no weapons is unconstitutionally vague and should be modified. He argues the condition should be modified to read: “Defendant shall not knowingly possess any dangerous or deadly weapons.” Regarding the challenged probation condition in this case, we make certain initial observations. It is an implicit “condition” of probation all probationers must avoid criminal conduct and obey all laws. (People v. Cortez (1962) 199 Cal.App.2d 839, 844; 3 Witkin, Cal. Criminal Law (4th ed. 2012) Punishment, § 669, p. 1079.) Any articulation of this condition is not necessary. In Cortez, the probationer violated the law by illegally reentering the United States after he was deported. That arrest not only subjected him to a new criminal prosecution, it was a valid basis to revoke his probation. (Cortez, at pp. 843–844.) In our case, the trial court advised appellant he could not possess any firearms or ammunition because he was a convicted felon. Appellant does not dispute that, because he is a convicted felon, he has a lifetime ban on possessing