Filed 5/16/13 P. v. Lopez CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SIXTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

 v. 

ENRIQUE NUNEZ LOPEZ, 

Defendant and Appellant. 

 H038506 

 (Monterey County 

 Super. Ct. No. SS120252) 

 Defendant Enrique Nunez Lopez appeals a judgment of conviction following his 

no contest plea to one count of unlawful possession of a firearm (Pen. Code, § 29815, 

subd. (a)),1

 and admission of a gang enhancement (§ 186.22, subd. (b)(1)). On appeal, 

defendant asserts the court erred in imposing a probation condition that is vague and 

overbroad, because it does not include a scienter requirement. 

STATEMENT OF THE CASE2

 In April 2012, defendant was charged by information with unlawful possession of 

a firearm (§ 29815, subd. (a); count 1), receiving or concealing stolen property (§ 496, 

subd. (a)). The information also alleged defendant committed the charged crimes for the 

 1

 All further statutory references are to the Penal Code. 

 2

 The underlying facts are omitted because they are not relevant to the issues on 

appeal. 
2 

benefit of a street gang (§ 186.22, subd. (b)(1)), and that defendant was ineligible for a 

county jail commitment (§ 1170, subd. (h)(3)). 

 Defendant pleaded no contest to count 1, and admitted the gang enhancement. 

The court suspended imposition of sentence, and ordered defendant to serve three years 

of formal probation, with terms and conditions including that he not “use or possess 

intoxicants, narcotics, or other controlled substances without the prescription of a 

physician.” 

DISCUSSION

 Defendant asserts the trial court erred by imposing a probation condition that 

lacked a scienter requirement. “[P]robation is a privilege and not a right, and . . . adult 

probationers, in preference to incarceration, validly may consent to limitations upon their 

constitutional rights . . . . [Citations.]” (People v. Olguin (2008) 45 Cal.4th 375, 384.) 

However, “[a] probation condition ‘must be sufficiently precise for the probationer to 

know what is required of him, and for the court to determine whether the condition has 

been violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.]” 

(In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.) Generally, to pass constitutional 

muster, conditions that prohibit possession of specific items or association with certain 

persons must require that the probationer knowingly possess or associate. (E.g., People 

v. Freitas (2009) 179 Cal.App.4th 747, 752; People v. Garcia (1993) 19 Cal.App.4th 97, 

102.) 

 The Attorney General implicitly concedes that the condition does not expressly 

require knowledge but urges us to adopt the approach taken by the court in People v. 

Patel (2011) 196 Cal.App.4th 956. In that case, the Third Appellate District considered 

whether a probation condition ordering that the defendant not drink alcohol, possess it, or 

be in a place where it was the chief item of sale was invalid because it lacked a 

knowledge requirement. (Id. at p. 959.) The court expressed its frustration with the 
3 

“dismaying regularity” with which “we still must revisit the issue in orders of probation” 

that do not include a qualification that the defendant must commit the proscribed conduct 

knowingly. (Id. at p. 960.) Noting that “there is now a substantial uncontradicted body 

of case law establishing, as a matter of law, that a probationer cannot be punished for 

presence, possession, association, or other actions absent proof of scienter” (ibid.), the 

Patel court announced that it would “no longer entertain this issue on appeal” (ibid.) and, 

moving forward, it would “construe every probation condition proscribing a 

probationer’s presence, possession, association, or similar action to require the action be 

undertaken knowingly” (ibid.), without modifying a probation order that “fails to 

expressly include such a scienter requirement.” (Id. at p. 961, fn. omitted). 

 A number of the courts of appeal have declined to follow the rationale of Patel, 

including the Fourth Appellate District in People v. Moses (2011) 199 Cal.App.4th 374, 

381, where the court chose to modify the probation conditions to include a knowledge 

requirement. We too decline to follow the Third Appellate District’s approach in Patel. 

Our Supreme Court faced the issue of the lack of a knowledge requirement in a probation 

condition and the remedy it mandated was unequivocal: “[W]e agree with the Court of 

Appeal that modification to impose an explicit knowledge requirement is necessary to 

render the condition constitutional.” (Sheena K., supra, 40 Cal.4th at p. 892, italics 

added.) Until our Supreme Court rules differently, we will follow its lead on this point. 

(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) 

 Under the circumstances, we modify the probation condition to prohibit defendant 

from knowingly using or possessing intoxicants, narcotics, or other controlled substances 

without the prescription of a physician. 
4 

DISPOSITION

The judgment is modified and defendant’s probation condition shall now be that 

he “not knowingly use or possess intoxicants, narcotics, or other controlled substances 

without the prescription of a physician.” As modified, the judgment is affirmed. 

 ______________________________________ 

 RUSHING, P.J. 

WE CONCUR: 

____________________________________ 

PREMO, J. 

____________________________________ 

ELIA J.