Filed 5/16/13 P. v. Lopez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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 appeal s a judgment of conviction following his no contest plea to one count of unlawful po ssession of a firearm (Pen. Code, § 29815, subd. (a)), 1 and admission of a gang enhancement (§ 186.22, su bd. (b)(1)). On appeal, defendant asserts the court erred in imposin g a probation condition that is vague and overbroad, because it does not include a scienter requirement.
S TATEMENT OF THE C ASE 2 In April 2012, defendant was charged by information with unlawful possession of a firearm (§ 29815, subd. (a); count 1), rece iving or concealing stol en 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 defendan t was ineligible for a county jail commitment (§ 1170, subd. (h)(3)). Defendant pleaded no cont est to count 1, and admitte d the gang enhancement. The court suspended imposition of sentence, a nd ordered defendant to serve three years of formal probation, with terms and conditi ons including that he not “use or possess intoxicants, narcotics, or other controlled substances without the prescription of a physician.”
D ISCUSSION Defendant asserts the trial court erre d 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 su fficiently precise for the probationer to know what is required of him, and for the court to determine wh ether the condition has been violated,’ if it is to w ithstand 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 imp licitly concedes that the condition does not expressly require knowledge but urges us to adop t 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 expr essed its frustration with the3 “dismaying regularity” with whic h “we still must revisit the i ssue 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 othe r actions absent proof of scienter” ( ibid .), the
Patel court announced that it would “no longe r 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 proba tion order that “fails to expressly include such a scienter requirement.” ( Id . at p. 961, fn. omitted). A number of the courts of appeal ha ve 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 manda ted was unequivocal: “[W]e agree with the Court of Appeal that modification to impose an exp licit knowledge requirement is necessary to render the condition constitutional.” ( Sheena K., supra , 40 Cal.4th at p. 892, italics added.) Until our Supreme Cour t 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 th e probation condition to prohibit defendant from knowingly using or possessi ng intoxicants, narcotics, or other controlled substances without the prescription of a physician.4 D ISPOSITION 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.