P. v. Carnero CA2/6

Filed 6/19/13 P. v. Carnero CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.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, 2d Crim. No. B240234 (Super. Ct. No. BA372728) Plaintiff and Respondent, (Los Angeles County)

v.

MIGUEL CARNERO,

Defendant and Appellant.

Miguel Carnero was granted probation after a jury convicted him of 1 violating a protective order (Pen. Code, § 166, subd. (a)(4)) 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 term 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.

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 enraged, 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 officers, "This is the kind of stuff he's doing." Appellant shouted at Berg: " Don't talk to me, you mother fucker." Los Angeles Police Officer Michael Geitheim told appellant he was violating 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 probation check of appellant's son (Kenny). The son was on felony probation for drug sales. It was a concern because appellant had a history of violence dating back to 1982 for battery, assault with a deadly weapon (1986), brandishing a weapon (1987), battery 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 order (§ 136.2), and imposed the following probation conditions: "You're ordered not to own, use, possess dangerous or deadly weapons including firearms or other concealable weapons." "Do not follow, harass, molest any victim or witness in this case, especially the victim[s] Janet Workman, Robert Berg." Discussion Appellant argues that the probation 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 vague that persons of common intelligence must