California Court of Appeal May 13, 2024 No. E081252Unpublished
Filed 5/13/24 P. v. Guevara CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E081252
v. (Super. Ct. No. RIF2202694)
MIGUEL ANGEL GUEVARA, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez,
Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Affirmed as modified with directions.
Larenda R. Delaini, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and
Caelle McKaveney, Deputy Attorneys General, for Plaintiff and Respondent.
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I.
INTRODUCTION
Defendant and appellant Miguel Angel Guevara, Jr. pleaded guilty to corporal
injury resulting in a traumatic condition having suffered a prior conviction for the same 1 offense (Pen Code, § 273.5, subd. (f)(1)). He also admitted that he had personally
inflicted great bodily injury upon the victim in the commission of the offense (§ 12022.7,
subd. (e)). In return, defendant was placed on formal probation for a period of 36 months
on various terms and conditions. On appeal, defendant contends (1) the probation
condition requiring him to avoid direct or indirect contact with the victim is vague and
overbroad and must be modified to include a scienter requirement, and (2) the probation
conditions and minute order must be amended to conform to the trial court’s oral
pronouncement of judgment as to the court operation and conviction assessment fees.
The People agree with defendant’s contentions, as do we. Accordingly, we modify the
no-contact probation condition to include a knowledge requirement and direct the clerk of
the court to amend the minute order of the sentencing hearing and the probation
conditions. In all other respects, we affirm the judgment.
1 All future statutory references are to the Penal Code unless otherwise stated.
2
II. 2 FACTUAL AND PROCEDURAL BACKGROUND
Defendant and V.G. had an on-and-off relationship for 15 years and shared a child
together. On June 5, 2022, defendant and V.G. were driving in a car when defendant
injured V.G. during an argument. When an officer responded to a potential domestic
violence call, the officer noticed that V.G. had two bumps on the right side of her head,
light bruising on her right hand, a minor contusion on her top lip, and a contusion or
laceration above her teeth. V.G.’s finger was fractured and she had a headache.
On March 10, 2023, defendant pleaded guilty to corporal injury resulting in a
traumatic condition having suffered a prior conviction for the same offense (§ 273.5,
subd. (f)(1)). He also admitted that he had personally inflicted great bodily injury upon
the victim in the commission of the offense (§ 12022.7, subd. (e)). In return, the
remaining allegation was dismissed, and on that same day, the trial court placed
defendant on formal probation for a period of 36 months on various terms and conditions.
One of his conditions required defendant to not have “direct or indirect contact with
(V.G.).” Additionally, as mandated by the criminal protective order, defendant was to
have no “contact indirect or otherwise with the person involved” by means of internet, 3 texting, calling, driving, and must not come within 100 yards of the protected person.
2 A summary of the factual background is taken from the preliminary hearing. 3 More specifically, the protective order prohibited the following: (1) personal, electronic, telephonic, or written contact with V.G.; (2) contact with V.G. through a third party, except an attorney of record; and (3) coming within 100 yards of V.G.
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In addition, the trial court ordered defendant to pay “a 500 DV fund fine; a 300
restitution fine; a 300 probation revocation fine, stayed, stayed permanently upon
successful completion of probation.” After defense counsel requested a waiver of any
fines and fees the court can waive based on defendant’s inability to pay, the court
permanently suspended any fines and fees, with the exception of restitution. Notably, the
court did not orally impose the court operation assessment fee, the criminal conviction
assessment fee, or any other fee. However, the court’s sentencing order of the March 10,
2023 hearing includes an imposition of a $40 court operations assessment fee under
section 1465.8 and a $30 criminal conviction assessment fee under Government Code
section 70373. Defendant timely appealed.
III.
DISCUSSION
A. Probation Condition
Defendant argues the probation condition ordering him to “‘have no direct or
indirect contact’” with V.G. is unconstitutionally vague and overbroad because it fails to
include scienter and knowledge requirements. He worries that the condition as it stands
“could be inadvertently violated through communication with a third party who conveyed
the communication to V.G.” Defendant thus believes the condition must be modified to
prohibit him from having “‘direct contact with V.G., or indirect contact through a third
party with the intent or reasonable knowledge that the communication will be conveyed
to V.G.’” The People agree that the condition should be modified to include a scienter
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element that he not knowingly have direct or indirect contact with V.G. We accept the
People’s concession that the condition should be modified to incorporate a knowledge
requirement and will modify the condition to incorporate an express knowledge
requirement.
In general, trial courts are given broad discretion in fashioning terms of probation,
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 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.” (People v. Jungers
(2005) 127 Cal.App.4th 698, 702.) 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.) The failure
to object below that a condition of probation is unconstitutionally vague or overbroad
does not forfeit review of the issue on appeal, as it is a pure issue of law. (See In re
Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).)
“[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
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offenders.’” (Sheena K., supra, 40 Cal.4th at p. 890.) “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.]” (Ibid.) “[O]nly reasonable specificity is required.
[Citation.] Thus, a statute ‘will not be held void for vagueness “if any reasonable and
practical construction can be given its language or if its terms may be made reasonably
certain by reference to other definable sources.”’” (People v. Lopez (1998) 66
Cal.App.4th 615, 630.)
As the People note, some appellate courts have held that a scienter requirement is
implied in probation terms involving a defendant’s presence or association and remand to
change such term would therefore be unnecessary. (See e.g., People v. Patel (2011) 196
Cal.App.4th 956, 960-961, fn.4.) In that case, the court expressed its frustration with the
“dismaying regularity” with which it had to revisit the issue of a lack of an express
scienter requirement in orders of probation. (Id. at p. 960.) The court noted that since
there existed a substantial uncontradicted body of case law establishing that a
“probationer cannot be punished for presence, possession, association, or other actions
absent proof of scienter,” it would no longer entertain the issue on appeal. (Ibid.) The
court stated that going forward, it would construe every such probation condition
proscribing restrictions on presence, possession, association, or other actions, to require
that the action be undertaken knowingly. (Id. at pp. 960-961.) Thus, it would no longer
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be necessary to seek a modification of a probation order that failed to include a scienter
requirement. (Ibid.)
A number of the Courts of Appeal have declined to follow the rationale of Patel,
including our colleagues in Division Three in People v. Moses (2011) 199 Cal.App.4th
374, 381, where the court chose to modify the probation conditions to include both actual
and constructive knowledge requirements. (See also People v. Turner (2007) 155
Cal.App.4th 1432, 1436 [modifying a condition to require that defendant must either
know or reasonably should know that persons are under 18 before he is prohibited from
associating with them]; In re Kacy S. (1998) 68 Cal.App.4th 704, 713 [modifying
probation condition that defendant not associate with any persons not approved by his
probation officer]; In re Victor L. (2010) 182 Cal.App.4th 902, 912-913 [modified
probation conditions to include knowledge requirement]; People v. Garcia (1993) 19
Cal.App.4th 97, 102-103 [same].) We too decline to follow the Third Appellate
District’s approach in Patel. As noted in People v. Pirali (2013) 217 Cal.App.4th 1341,
“[o]ur Supreme Court faced the issue of the lack of a knowledge requirement in a
probation condition and concluded that ‘modification to impose an explicit knowledge
requirement is necessary to render the condition constitutional.’ [Citation.] Until our
Supreme Court rules differently, we will follow its lead on this point.” (Id. at p. 1351;
see Sheena K., supra, 40 Cal.4th at p. 892.)
Therefore, we will order the challenged condition modified to incorporate an
express knowledge requirement. The probation condition is modified to read: “Have no
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knowing direct or indirect contact with V.G., including contact by phone, writing,
computer, electronic device, or through another person, except an attorney of record, and
not knowingly be within 100 yards of V.G.”
B. Correction of Court’s Minute Order
Defendant argues the sentencing minute order and the probation conditions must
be amended to conform to the trial court’s oral pronouncement of judgment concerning
the court operation and conviction assessment fees. The People concede the sentencing
order and probation conditions must be amended because these fees were not included in
the court’s oral pronouncement of judgment and the court waived any fines and fees
based on defendant’s inability to pay.
We agree with defendant, and accept the People’s concession, that the March 10,
2023 sentencing order and defendant’s probationary conditions must be amended to
accurately comport with the trial court’s oral pronouncement of judgment. “In a criminal
case, it is the oral pronouncement of sentence that constitutes the judgment.” (People v.
Scott (2012) 203 Cal.App.4th 1303, 1324.) “Where there is a discrepancy between the
oral pronouncement of judgment and the minute order or the abstract of judgment, the
oral pronouncement controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385; see
People v. Mesa (1975) 14 Cal.3d 466, 471 [rendition of judgment is an oral
pronouncement; the record of the oral pronouncement of the court controls over the
clerk’s minute order and abstract of judgment].)
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Courts of Appeal “may correct clerical errors at any time, and appellate courts . . .
that have properly assumed jurisdiction [can] order[] correction of [minute orders and]
abstracts of judgment that [do] not accurately reflect the oral judgments of sentencing
courts.” (People v. Mitchell (2001) 26 Cal.4th 181, 185.) “‘If the clerk includes fines in
the court’s minutes or the abstract of judgment that were not part of the oral
pronouncement of sentence, those fines must be stricken from the minutes and the
abstract of judgment.’” (People v. Clark (2021) 67 Cal.App.5th 248, 261, quoting People
v. El (2021) 65 Cal.App.5th 963, 967.)
Here, the record indicates that the trial court did not impose the court operations or
conviction assessment fees during the oral pronouncement of judgment on March 10,
2023. Furthermore, after defense counsel specifically requested for fines and fees to be
waived due to defendant’s inability to pay, the court waived any fines and fees. While it
is unclear which fees the court intended to waive, the court did not orally impose the
court operations or conviction assessment fees. Accordingly, we will direct the trial court
to issue amended probation conditions and a corrected minute order of the March 10,
2023 sentencing hearing correcting this clerical error by striking the court operation and
criminal assessment fees. (People v. Mitchell, supra, 26 Cal.4th at p. 188; People v.
Sanchez (2019) 38 Cal.App.5th 907, 922.)
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IV.
DISPOSITION
The challenged no-contact probation condition is modified as follows: “Have no
knowing direct or indirect contact with V.G., including contact by phone, writing,
computer, electronic device, or through another person, except an attorney of record, and
not knowingly be within 100 yards of V.G.”
The trial court is directed to prepare amended probation conditions and sentencing
minute order with respect to court operation and criminal assessment fees and the no-
contact probation condition. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a probation condition prohibiting contact with a victim must include an express knowledge requirement to be constitutional, and that the trial court's oral pronouncement of judgment controls over conflicting minute orders regarding fees.
Issues
Whether a probation condition prohibiting contact with a victim is unconstitutionally vague or overbroad for lacking an express scienter requirement.
Whether the trial court's minute order must be amended to conform to the oral pronouncement of judgment regarding court fees.
Disposition. Affirmed as modified with directions.
Quotations verified verbatim against the opinion
“modification to impose an explicit knowledge requirement is necessary to render the condition constitutional.”
“In a criminal case, it is the oral pronouncement of sentence that constitutes the judgment.”
“Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.”