Metropolitan News-Enterprise


Tuesday, January 9, 2018


Page 3


Court of Appeal Rejects Attorney General’s Concession of Error

Sixth District Says Condition of Probation That Defendant ‘Stay Away’ From Facility Is Not Unconstitutionally Vague; Calls Into Question Soundness of Earlier Decision


By a MetNews Staff Writer


The Sixth District Court of Appeal has taken the rare action of rejecting a concession by the Office of Attorney General that an error was committed in sentencing, spurning its acknowledgement that a defendant in a stalking case is correct that a condition of probation that he “stay away” from a particular place is unconstitutionally vague because the judge failed to tell him just how far away he has to remain.

Justice Adrienne Grover wrote the opinion, filed Friday. It rejects the view of both parties that the district’s 2011 opinion in People v. Barajas renders the condition of probation in the present case infirm.

The place from which the appellant, probationer Jason Alan Holzmann, has been ordered to “stay away” is the Apple Computer “campus” (office and laboratory) in Cupertino, located in Silicon Valley. Charges of trespassing at that facility were dropped as part of a plea bargain under which Holzmann pled no contest to stalking his ex-wife.

Earlier Decision

In Barajas—which Grover pointedly noted was decided by “a different panel of this court”—a probation condition, imposed on a man who pled no contest to assault with a deadly weapon provided:

“You’re not to be adjacent to any school campus during school hours unless you’re enrolled in [the school] or with prior permission of the school administrator or probation officer.”

There, Santa Clara Superior Court Judge Katherine Lucero, sitting on assignment as a Court of Appeal pro tem, declared the word “adjacent” to be impermissibly vague, explaining:

“While a person on the sidewalk outside a school is undeniably adjacent to the school, a person on the sidewalk across the street, or a person in a residence across the street, or two blocks away could also be said to be adjacent. To avoid inviting arbitrary enforcement and to provide fair warning of what locations should be avoided, we conclude that the probation condition requires modification.”

The trial court was ordered, on remand, to reword the condition to say:

“You’re not to knowingly be on or within 50 feet of any school campus during school hours unless you’re enrolled in it or with prior permission of the school administrator or probation officer.”

Grover’s Opinion

Grover wrote:

“We do not accept the concession because Barajas does not compel the conclusion that a stay away order must specify a distance to be constitutional. The addition of an express distance in Barajas was merely one approach to addressing the concern in that case, namely that the phrase ‘adjacent to’ as used in a condition prohibiting the defendant from being “adjacent to any school campus,” was vague….That language is not an issue here. In our view, the condition in this case––requiring defendant to simply “stay away” from a particular place—is not vague.”

The author, joined by Acting Presiding Justice Franklin D. Elia and Justice Eugene M. Premo, strongly hinted at disagreement with Barajas, saying in a footnote:

“Because the challenged condition in this case is different, we need not decide whether Barajas was correct about the term “adjacent to” being unconstitutionally vague. But neither do we endorse the reasoning in Barajas on that point. Terms that are similar, or even less precise than ‘adjacent to,’ have been found constitutionally valid.”

Grover pointed out that vagueness was not discerned by the United States Supreme in 1965 in looking at the words “near the courthouse,” by the Court of Appeal for this district in 1997 in interpreting the phrase “in the vicinity of” an ATM, nor by the Ninth U.S. Circuit Court of Appeals in 2003 in determining the clarity of “close proximity” to a hotel.

Lucero’s 2011 opinion was joined in by then-Presiding Justice Conrad Rushing (who recently retired amidst allegations of sexual misconduct) and Justice Wendy Clark Duffy.

‘Stay Away’ Condition

The wording of the order to Holzmann was clear to Grover. She said:

“The probation condition here expresses in ordinary language what defendant must do to comply with it: stay away from the Apple campus. The common sense meaning of ‘stay away’ in this context is ‘do not go to or enter’ the identified premises. We believe this is what a person of ordinary intelligence would understand when told to stay away from a place. The word ‘away’ is so commonly used and ingrained in our vocabulary that one hardly needs to resort to a dictionary to define it. But consistent with our understanding of its meaning in this context, a dictionary definition of ‘away’ is ‘from this or that place.’…Had the trial court wanted to prohibit defendant from coming within a certain distance of the Apple campus it could have done so, but that would be a different condition.”

Grover went on to say:

“The law does not always succeed in expressing concepts in a clear and understandable way. But an order that someone ‘stay away’ from an identified location is a simple command stated in plain language. The probation condition challenged here need not specify a distance in order to satisfy the important objectives of fair warning and legitimate enforcement.”

The case is People v. Holzman, 18 S.O.S. 76.


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