People v. Gomez CA6

DISCUSSION

In placing defendant on probation, the trial court imposed the following condition: “Not possess, receive or transport any firearm, ammunition or any deadly or dangerous weapon. Immediately surrender any firearms or ammunition you own or possess to law enforcement (P.C. § 12021).” Defendant contends that the above probation condition is unconstitutionally vague, in violation of his federal constitutional right to due process, because it does not include a knowledge requirement. Since probation conditions that implicate constitutional rights must be narrowly drawn, the knowledge requirement in some probation conditions “should not be left to implication.” (People v. Garcia (1993) 19 Cal.App.4th 97, 102.) Absent a requirement that the defendant knows he or she is disobeying the condition, the defendant is vulnerable, and unfairly so, to punishment for unwitting violations of it. (See People v. Lopez (1998) 66 Cal.App.4th 615, 628-629.) An appellate court is empowered to modify a probation condition in order to render it constitutional. (In re Sheena K. (2007) 40 Cal.4th 875, 892.) In People v. Kim (2011) 193 Cal.App.4th 836 (Kim), this court declined to modify a…