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■ People v. Paysinger, No. C059448

Convicted of second degree robbery and placed on five years’ probation, defendant Tacare Desean Paysinger appeals, arguing:  (1) the flight instruction the trial court gave (CALCRIM No. 372) was unconstitutional and not supported by substantial evidence; (2) his conviction must be reduced to grand theft because that was all the actual perpetrator (codefendant Pham) was convicted of; and (3) the weapons and gang conditions of his probation are unconstitutionally vague and/or overbroad. 

     In the published portion of our opinion, we reject defendant’s challenge to the constitutionality of CALCRIM No. 372.  In the unpublished portion of our opinion, we agree with some of defendant’s arguments regarding his probation conditions and will modify those conditions accordingly; otherwise, we reject defendant’s arguments and will therefore affirm the judgment as modified.

III

Probation Conditions

     The trial court placed defendant on probation subject to various conditions, including:  (1) that he “not own or possess any dangerous or deadly weapons nor remain in any building or vehicle where any person has such a weapon, nor remain in the presence of any armed person”; and (2) that he not “associate with any known or reputed gang members” or “be in places frequented by known gang members.”  On appeal, defendant contends both conditions are unconstitutionally vague and the first condition is also unconstitutionally overbroad.  We address the challenges to the two conditions in turn.

A

Weapons Condition

     Defendant contends the weapons condition “is unconstitutionally vague because it contains no knowledge requirement” and is unconstitutionally overbroad “because the term ‘dangerous or deadly weapon’ is not narrowly tailored and prohibits constitutionally protected conduct.”  The People concede the former point but not the latter. 

     “A probation condition is subject to the ‘void for vagueness’ doctrine, and thus ‘must be sufficiently precise for the probationer to know what is required of him . . . .’”  (People v. Lopez (1998) 66 Cal.App.4th 615, 630.)  We agree with the parties that the condition forbidding defendant from “remain[ing] in any building or vehicle where any person has . . . a [dangerous or deadly] weapon” or “remain[ing] in the presence of any armed person” is unconstitutionally vague to the extent it does not require defendant to know of the presence of the offending weapon or weapons.  Accordingly, we will modify the condition to impose an explicit knowledge requirement in order to render the condition constitutional.  (See In re Sheena K. (2007) 40 Cal.4th 875, 892.)

     “A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.”  (In re Sheena K., supra, 40 Cal.4th at p. 890.)  Defendant contends the term “‘dangerous or deadly weapon’” “is not closely tailored to the purpose of the condition -- to prohibit possession of or proximity to persons with inherently dangerous or deadly weapons.”  Although his argument is not entirely clear, defendant appears to be arguing that the condition must be limited to weapons that are “inherently” dangerous or deadly -- that is, objects that are dangerous or deadly in the ordinary use for which they are designed -- as opposed to ordinary objects that might simply be used as a dangerous or deadly weapon.  (See People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029; People v. Graham (1969) 71 Cal.2d 303, 327.)

     The People contend the term “dangerous or deadly weapon” is not constitutionally overbroad because the term “is commonly understood to mean any instrument likely to produce death or great bodily injury.”  They argue that if the term is understood as encompassing “inherently dangerous or deadly weapons, such as a gun, and . . . ordinary items like a pencil, capable of inflicting great bodily injury [that are possessed] with the intent of using them as a weapon,” the term is not overbroad.

     We agree with the People.  Under California law, “There are two categories of ‘dangerous or deadly weapons.’  First, there are those instrumentalities which are weapons in the strict sense of the word, such as guns, dirks, etc.  Second, there are those instrumentalities which are not weapons in the strict sense of the word, but which may be used as such, such as razors, pocket knives, hat pins, canes, hammers, hatchets, and other sharp or heavy objects.  These are not weapons in the strict sense of the word and are not ‘dangerous or deadly’ to others in the ordinary use for which they are designed.  As such they may not be said as a matter of law to be dangerous or deadly weapons.  The instrumentalities falling in the first classification are weapons in the strict sense of the word and are ‘dangerous or deadly’ to others in the ordinary use for which they are designed and may be said as a matter of law to be dangerous or deadly weapons.  [Citation.]  When it appears that an instrumentality other than one falling within the first category is capable of being used in a dangerous or deadly manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, its character as a dangerous or deadly weapon may be established, at least for the purposes of that occasion.”  (People v. Reid (1982) 133 Cal.App.3d 354, 365.)

     Under this well-established meaning of the term “dangerous or deadly weapon,” defendant is not prohibited from owning, possessing, or remaining in the presence of any person who possesses an ordinary object that may be used as a dangerous or deadly weapon unless defendant intends, or is aware of the other person’s intent, to use the object as a weapon.  Construed in this manner, the term “dangerous or deadly weapon” in defendant’s probation condition is closely tailored to the purpose of the condition and therefore is not unconstitutionally overbroad. 

B

The Gang Condition

     Relying on this court’s decision in In re Vincent G. (2008) 162 Cal.App.4th 238, defendant contends the gang condition “is unconstitutionally vague because it does not contain a sufficient knowledge requirement and does not define the term ‘gang.’”  The People agree. 

     In In re Vincent G., this court modified gang probation conditions similar to the condition at issue here in order to remedy vagueness problems arising from the lack of a personal knowledge requirement and the lack of a definition of the word “gang.”  (In re Vincent G., supra, 162 Cal.App.4th at pp. 244-248.)  We agree with the parties that a similar modification is required here.

     The weapons condition on defendant’s probation is modified as follows:  “Defendant shall not own or possess any dangerous or deadly weapons nor remain in any building or vehicle where he knows any person has such a weapon, nor remain in the presence of any person he knows is armed with such a weapon.”

     The gang condition on defendant’s probation is modified as follows:  “Defendant shall not associate with any person whom he knows, or whom his probation officer informs him, is a gang member.  Defendant shall not be in places frequented by persons whom he knows, or whom his probation officer informs him, are gang members.  For purposes of this condition, the word ‘gang’ means a criminal street gang as defined in Penal Code section 186.22, subdivisions (e) and (f).”

     As modified, the judgment is affirmed.

■ HELD:

Conviction for second degree robbery is affirmed where defendant failed to show any constitutional defect in the CALCRIM No. 372 flight instruction to the jury.
People  v. Paysinger -C059448-5/21/09 CA3
People  v. Paysinger -C059448-5/21/09 CA3-PDF

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