Protective Order Not Unconstitutionally Vague

The following summary of a recent First Appellate District Court opinion, People v. Israel Fabian Fuentes, is illustrative of what happens or can happen in nearly every domestic violence case.  It is consequently a good opinion to read to understand many of the common issues in a domestic violence case.

The level or degree of domestic violence inflicted by Mr. Fuentes on Jane Doe was uncommonly brutal.  The opinion describes how when police arrived, Fuentes was still hitting Doe.  Fuentes was heavily intoxicated.  Officers noticed a small child crying in the corner of the living room.

Doe’s face was bloody and had visible bruising on her cheeks and a knot forming on the left side of her eye.  She had dried blood on her arms and hands from wiping her face, blood on her pants.  Her front row of teeth were “completely disfigured” and “pushed back toward her throat and seemed to be coming loose.”

Fuentes apparently became angry at Doe because when he dropped her off for work that morning, he believed he saw her walking with another man.  Once at home that evening, he confronted her about this while she was seated on the toilet and then stood over her, punching her 10 to 15 times in the face.  He then kneed her in the face four or five times.

After being arrested and taken to Sonoma County Superior Court, he pleaded guilty to inflicting corporal injury on Doe, a person with whom he had a dating relationship, and admitted inflicting great bodily injury on Doe. 

The plea agreement allowed for probation with a suspended sentence of eight years.  The judge allowed him to leave court and permitted “peaceful contact” with Doe.  This meant Fuentes could not “harass, strike, threaten, assault (sexually or otherwise, follow, stalk, molest, block movements, destroy property, et cetera, for the protected party or otherwise disturb the peace of Jane Doe.” 

After he entered his plea, he was released pending sentencing on a “Cruz waiver” under People v. Cruz (1988) 44 Cal. 3d 1247.  In his plea agreement, he initialed a paragraph stating, “I understand that if pending sentencing, I commit another crime, violate any condition of a supervised O.R. release, or willfully fail to appear for my sentencing hearing, the agreement will be cancelled.  I will then be sentenced unconditionally and I will not be allowed to withdraw mu plea.”

About one month later, the probation office reported a new law violation by Fuentes in that Doe reported Fuentes yelled at her and withheld access to her phone.  Doe told probation that she was fearful for her own safety and terrified of Fuentes’ anger.

Fuentes then appealed the finding that his conduct was not peaceful, arguing that the release condition that he not “disturb the peace” of Doe was unconstitutionally vague.

The First Appellate District Court acknowledged that “the underpinning of a vagueness challenge is the due process concept of ‘fair warning.’” In re Sheena K. (2007) 40 Cal. 4th 875, 890.  The “fair warning” requirement is meant to prevent arbitrary law enforcement.”  A vague condition exists “when men of common intelligence must necessarily guess at to its meaning and differ in its application.” Id.

Disturbing the peace under Penal Code § 415 may be based on loud noise and shouting “where there is a clear and present danger of imminent violence” or “where the purported communication is used as a guise to disrupt lawful endeavors.” In re Brown (1973) 9 Cal. 3d 612, 621.

Under the Domestic Violence Prevention Act (DVPA), however, the phrase disturbing the peace means “conduct that destroys the mental or emotional calm of the other party.”  In re Marriage of Nadkarni (2009) 173 Cal. App. 4th 1483, 1497.

The First Appellate Court therefore rejected Fuentes challenge and affirmed the trial court’s finding that he violated the terms of his pre-sentencing release under a Cruz waiver.

For more information about constitutional challenges to protective orders or probation conditions for being vague or ambiguous, please click on the following articles: