People v. Bloomberg CA4/1

Opinion

Filed 9/18/26 P. v. Bloomberg CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D086279, D086360

Plaintiff and Respondent, (Super. Ct. Nos. v. SCD306472, SCD297003)

RYAN NOAH BLOOMBERG,

Defendant and Appellant.

CONSOLIDATED APPEALS from a judgment of the Superior Court of San Diego County, Robert O. Amador, Judge. Affirmed.

Asya Ovsepyan, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant General, Arlene A. Sevidal, Senior Assistant Attorney General, Donald W. Ostertag, Supervising Deputy Attorney General, and Anne Spitzberg, Deputy Attorney General, for Plaintiff and Respondent.

1 Ryan Noah Bloomberg appeals from a judgment entered after a jury convicted him of a felony drug offense and the court imposed a sentence including a period of mandatory supervision. He challenges a supervision condition providing he was not to “knowingly own, transport, sell, or possess any weapon, firearm, replica firearm or weapon, ammunition, or any instrument used as a weapon.” Bloomberg contends the supervision provision’s language, particularly the phrase “any weapon,” is unconstitutionally vague. He asks us to modify the condition to read “dangerous or deadly weapon” to avoid the constitutional infirmity. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Bloomberg was on felony probation in San Diego Superior Court Case No. SCD297003 after pleading guilty to carrying a concealed dirk or dagger (Pen. Code,1 § 21310) and failure to appear (§ 1320, subd. (b)). About six months before his probation was to expire, police officers contacted him and other individuals in an Ocean Beach park area in the early morning hours. They searched Bloomberg and found what was later determined to be methamphetamine in a fanny pack and one of his pants pockets. A jury later convicted Bloomberg in San Diego Superior Court Case No. SCD306472 of possession of methamphetamine (Health and Saf. Code, § 11395, subd. (b)(1)) while having two or more prior qualifying drug convictions (Health and Saf. Code, §§ 11350, subd. (a), 11395, subd. (c)). The court imposed a 24-month prison term, with Bloomberg to serve a split 1 Undesignated statutory references are to the Penal Code.

2 sentence of 12 months in custody and 12 months on mandatory supervision.2 One of the supervision terms provides: “Do not knowingly own, transport, sell, or possess any weapon, firearm, replica firearm or weapon, ammunition, or any instrument used as a weapon.” Bloomberg’s counsel unsuccessfully objected to the term on grounds the language “any instrument used as a weapon” was vague. DISCUSSION I. Constitutional Vagueness Doctrine The constitutional vagueness doctrine “derives from the due process concept of fair warning [and] bars the government from enforcing a provision that ‘forbids or requires the doing of an act in terms so vague’ that people of ‘common intelligence must necessarily guess at its meaning and differ as to its application.’ [Citations.] To withstand a constitutional challenge on the ground of vagueness, a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition. [Citations.] In determining whether the condition is sufficiently definite, however, a court is not limited to the condition’s text. [Citation.] We must also consider other sources of applicable law [citation], including judicial construction of similar provisions. [Citations.] Thus, a probation condition should not be invalidated as unconstitutionally vague ‘ “ ‘if any reasonable 2 More specifically, the court terminated Bloomberg’s probation and sentenced him in the probation revocation case (case No. SCD297003) to 16 months for carrying a concealed dirk or dagger and a concurrent 16-month sentence for failing to appear while out on his own recognizance. It imposed an eight-month (one-third the midterm) sentence on the drug possession conviction in case No. SCD306472, then split the 24-month sentence into 12 months custody and 12 months mandatory supervision.

3 and practical construction can be given to its language.’ ” ’ ” (People v. Hall (2017) 2 Cal.5th 494, 500-501; see also People v. Forrest (2015) 237 Cal.App.4th 1074, 1080.) “ ‘[I]n evaluating challenges based on claims of vagueness, . . . “[t]he particular context is all important.” ’ ” (In re Oswaldo R. (2017) 11 Cal.App.5th 409, 417; Forrest, at p. 1080 [a “probation condition should be evaluated in its context, and only reasonable specificity is required”].) This court independently reviews a probation condition’s alleged vagueness as a question of law. (People v. Forrest, supra, 237 Cal.App.4th at p. 1080; In re K.C. (2023) 87 Cal.App.5th 921, 925; People v. Stapleton (2017) 9 Cal.App.5th 989, 993.) II. Contentions Bloomberg contends the word “weapon” by itself renders the challenged probation condition vague. He argues: “The term ‘any weapon’ can encompass a wide array of items. For example, a steak knife can be considered a ‘weapon’ by the probation officer even if it is not being used as a weapon. This vague term, not to own or possess ‘any weapon’ leaves open arbitrary discretion to the policemen, judges, and probation officers and allows for the inherent dangers available to vague probation terms.” Bloomberg compares his condition to that in In re Kevin F. (2015) 239 Cal.App.4th 351 (overruled in part in People v. Hall, supra, 2 Cal.5th at p. 503, fn. 2), where according to him, the Court of Appeal modified a weapons condition to read “dangerous and deadly weapons” to render the term constitutional. He maintains that because his weapons condition “does not sufficiently inform [him] what item he can or cannot possess,” we should modify the condition to include the qualifier “dangerous or deadly weapon” to pass constitutional muster.

4 The People respond that the term “weapon” is sufficiently specific and conveys a commonly understood meaning: it encompasses objects that can function as weapons when used violently in their unintended manner, and a reasonable person would understand the condition is not aimed at lawful activity, but at preventing the possession or use of objects in a manner that poses a risk of harm. They point out that the court in In re Kevin F. reached the opposite conclusion than what Bloomberg asserts, that is, the court held “the omission of ‘dangerous or deadly’ [did] not render the juvenile court’s weapons prohibition unconstitutionally vague” because that qualifier “inheres in the commonly understood meaning of the term ‘weapon’ ” and thus was “implicit in the probation condition as phrased by the court.” (In re Kevin F., supra, 239 Cal.App.4th at p. 360.) The People say the condition does not require modification by this court. III. Analysis We hold the challenged condition is not vague and needs no modification. In People v. Forrest, supra, 237 Cal.App.4th 1074, this court rejected a contention that an identical probation restriction on possessing weapons was unconstitutionally vague. (Forrest, at p. 1082.) The defendant had argued the phrase “any instrument used as a weapon” made it “unclear whether the phrase prohibits (1) the possession of any instrument where she intends to use the instrument as a weapon, or (2) the possession of any instrument which is sometimes capable of being used as a weapon.” (Ibid.) There was no need to modify the condition, because it “is clearly directed at prohibiting weapon possession and, when it is read in context, reasonable persons would understand that ‘any instrument used as a weapon’ refers to an item that is being used, or is intended to be used, as a weapon, and does not refer to any object that might conceivably be used as a weapon. The 5 phrase ‘used as a weapon’ on its face excludes objects that are merely capable of being used as a weapon but are not actually being used as such.” (Ibid.) Thus, “a probationer convicted of a violent crime would not be in violation of [the weapon prohibition condition] by carrying a bat to baseball practice, but would be in violation of that condition if he or she possessed a baseball bat in the context being a member of a gang on the way to a gang-related confrontation.” (Ibid.) Bloomberg does not mention Forrest in either his opening or reply appellate briefs. He argues the People are mistaken about the court’s conclusion in In re Kevin F., which assertedly was that modifying the probation condition at issue in that case “best comports with due process.” Bloomberg reiterates his argument that a probation violation would be left to the arbitrary discretion of a probation officer, police officer or judge given the fact that “regular household or everyday items . . . may be considered a weapon . . . .” He argues his requested modification will “comport with due process . . . .” These arguments do not convince us to disregard Forrest and its reasoning. And In re Kevin F. supports our conclusion that Bloomberg’s condition does not need his requested modification, even though the challenged condition in In re Kevin F. differs from the condition here. There, the juvenile court imposed an oral requirement that the minor was “not to possess any weapons” and “not to possess any toys that look like weapons.” (In re Kevin F., supra, 239 Cal.App.4th at pp. 356-357.) It also imposed a written requirement that a minor “[n]ot possess weapons of any kind, which means no guns, knives, clubs, brass knuckles, attack dogs, ammunition, or something that looks like a weapon. You are not to possess anything that you could use as a weapon or someone else might consider to be a weapon.” (Id.

6 at p. 357.) Addressing the minor’s challenge that the condition was unconstitutionally vague, the Court of Appeal rejected the argument that the written condition had to be modified to prohibit possession of “dangerous or deadly weapons,” concluding the written condition was “sufficiently precise for [the minor] to know what is required of him.” (Id. at p. 359.) The In re Kevin F. court looked back to case law setting out a test for dangerous and deadly weapons (People v. Raleigh (1932) 128 Cal.App. 105, 107) and explained that under it, “the notion that an instrument or object must be either ‘dangerous or deadly’ in order to qualify as a ‘weapon’ is so fundamental that it need not be stated explicitly. [Citation.] Because the qualifier ‘dangerous or deadly’ inheres in the commonly understood meaning of the term ‘weapon’ [citation], we agree with the Attorney General that it is implicit in the probation condition as phrased by the court. Even without the qualifier [the minor] seeks, a reasonable person can understand the plain meaning of the term ‘weapon.’ ” (In re Kevin F, at p. 360.) The In re Kevin F. court went on, however, to modify the prohibition on the minor “possess[ing] anything that [he] could use as a weapon” because it did not provide adequate notice of the prohibited conduct. (In re Kevin F., supra, 239 Cal.App.4th at p. 360.) It reasoned that “as worded, the condition is broad enough to include any object that could injure someone, even an ordinary household object, regardless of [the minor’s] intent in possessing it.” (Ibid.) Thus, the court ordered that portion of the condition modified to prohibit the minor “from possessing any object that he intends to use as a weapon.” (Id. at p. 361; see also In re I.S. (2016) 6 Cal.App.5th 517, 526 [weapon-related condition held vague to the extent it prohibited possession of “anything that can be considered by someone else to be a [dangerous or deadly] weapon”], disapproved on other grounds by People v. Adelmann 7 (2018) 4 Cal.5th 1071, 1078, fn. 10.)3 Given the breadth of the probation condition there, In re Kevin F. is inapposite with respect to the need for these modifications. But otherwise, In re Kevin F. supports our rejection of Bloomberg’s vagueness challenge to use of the word “weapon” in his weapons probation condition without the qualifier “dangerous and deadly.” DISPOSITION The judgment is affirmed.

O’ROURKE, Acting P. J.

WE CONCUR:

DATO, J.

BUCHANAN, J.

3 The court also modified the minor’s weapons condition to include a scienter requirement (that the minor not “knowingly” possess weapons etc.). (In re Kevin F., supra, 239 Cal.App.4th at p. 366.) But the court in People v. Hall, supra, 2 Cal.5th 494 disapproved of In re Kevin F. “to the extent [it] concluded that an express knowledge requirement was necessary to prevent unwilling violations of possessory probation conditions . . . .” (Hall, at p. 503, fn. 2.)