Filed 7/24/14 P. v. Bowman CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCARLETT CHARMINE BOWMAN, Defendant and Appellant. H040058 (Monterey County Super. Ct. No. SS130952)

I. INTRODUCTION Defendant Scarlett Charmine Bowman ap peals after pleading no contest to transporting a controlled substance (Health & Saf. Code, § 11379, subd. (a)). She was placed on Proposition 36 probation (Pen . Code, § 1210.1) for 18 months. On appeal, defendant challenges a probatio n condition that requires her not to use, purchase, or possess alcoholic beverages and to stay out of places where alcohol is the main item of sale. She also challenges a pr obation condition that requires her not to use or possess narcotics, intoxicants, drugs, or other controlled substances without a prescription. Defendant contends these pr obation conditions are vague and overbroad because they do not include a knowledge element. We will modify the challenged probation conditions and affirm the judgment as modified.2 II. BACKGROUND On May 11, 2013, defendant was the pa ssenger in a vehicle that was stopped by police for parking violations. Defendant, who was on probation, had a bindle of methamphetamine on her person. Defendant was charged with transporting a controlled substance (count 1; Health & Saf. Code, § 11379, subd. (a)) and possession of a contro lled substance (count 2; Health & Saf. Code, § 11377, subd. (a)). On June 11, 2013, defend ant pleaded no contest to count 1 “for personal use.” On July 11, 2013, the trial court placed defendant on Proposition 36 probation for 18 months. The trial court imposed a number of pr obation conditions, including the following: “Totally abstain from the use of alco holic beverages, not purchase or possess alcoholic beverages, and stay out of places when it is the main item of sale.” “Not use or possess alcohol/narcotics, in toxicants, drugs, or other controlled substances without the prescription of a physici an; not traffic in, or associate with persons you know to use or traffic in narco tics or other controlled substances.”

III. DISCUSSION Defendant contends the probation cond itions regarding alcohol and controlled substances are unconstitutionally vague and overbroad because they do not include a knowledge element. “A probation condition ‘must be sufficien tly precise for the pr obationer to know what is required of him [or her], and for th e court to determine wh ether the condition has been violated,’ if it is to w ithstand a challenge on the ground of vagueness. [Citation.] A probation condition that impos es limitations on a person’s constitutional rights must closely tailor those limitations to the purpos e of the condition to a void being i nvalidated as unconstitutionally overbr oad. [Citation.]” ( In re Sheena K. (2007) 40 Cal.4th 875, 890 ( Sheena K. ).)3 In Sheena K. , the California Supreme Court considered a probation condition requiring the defendant not “ ‘associate with anyone disapproved of by probation.’ ” ( Sheena K., supra, 40 Cal.4th at p. 880.) The court held “that in th e absence of an express requirement of know ledge,” the probation conditi on was unconstitutio nally vague because it “did not notify de fendant in advance with wh om she might not associate through any reference to persons whom defe ndant knew to be disapproved of by her probation officer.” ( Id. at pp. 891-892.) Appellate courts have held that a k nowledge element was required in numerous other probation conditions. For instance, in People v. Pirali (2013) 217 Cal.App.4th 1341 ( Pirali ), this court held that a knowledge element was required in a probation condition that prohibited the defendant from having acc ess to the Internet. ( Id. at p. 1350.) In People v. Moses (2011) 199 Cal.App.4th 374 ( Moses ), the court accepted the Attorney General’s concession that a knowl edge element should be added to probation conditions barring the defendant from owning, using, or possessing any form of sexually explicit material and from “frequent[ing] any establishment where su ch items are viewed or sold.” ( Id. at p. 377.) In In re Victor L. (2010) 182 Cal.App.4t h 902, the court held that a knowledge element was required in a probation condition proh ibiting the defendant from “ ‘remain[ing] in any building, vehicle or in the presence of any person where dangerous or deadly w eapons or firearms or ammunition exist.’ ” ( Id. at p. 912.) And, in People v. Freitas (2009) 179 Cal.App.4th 747, the co urt held that a knowledge element was required in probation conditions rega rding possession of firearms and stolen property. ( Id. at pp. 751-752; but see People v. Kim (2011) 193 Cal. App.4th 836, 847 [probation condition prohibiting possession of firearms and ammunition, which explicitly referenced underlying statutes, did not need to include an explicit knowledge requirement].) The Attorney General a sserts that it is unnecessary to include a knowledge requirement in the challenged probation co nditions. The Attorney General cites to4 People v. Cervantes (2009) 175 Cal.App.4th 291 at page 295, where the court noted, “A court may not revoke probation unless the evid ence supports ‘a conclusion [that] the probationer’s conduct constituted a willful violation of the terms and conditions of probation.’ [Citation.]” The A ttorney General invites this c ourt to adopt the approach of the Third District Court of Appeal in People v. Patel (2011) 196 Ca l.App.4th 956 ( Patel ).

In Patel , the Third District considered whethe r a probation condition ordering that the defendant not drink alcohol, po ssess it, or be in a place wher e 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 “dismaying regularity” with which “we still must revisit the issue in orders of probation” that do no t 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 la w 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 proscribin g a probationer’s presence, possession, association, or similar action to require the acti on be undertaken knowingly” ( ibid. ), without modifying a probation order that “fails to expressl y include such a scienter requirement” ( id. at pp. 960-961). The Attorney General acknowl edges that a number of Courts of Appeal— including this court—have declined to adopt the Patel approach. (See Pirali, supra, 217 Cal.App.4th at p. 1351 [“Un til our Supreme Court rules differently, we will follow its lead on this point.”]; People v. Moore (2012) 211 Cal.App.4th 1179, 1188, fn. 7; Moses,

supra, 199 Cal.App.4t h at p. 381.) We agree with defendant that a knowledge element sh ould be added to the first challenged probation condition, which states: “Totally abstain from the use of alcoholic beverages, not purchase or posse ss alcoholic beverages, and stay out of places when it is

the main item of sale.” The c onduct affected by this condition is “not in itself criminal,”5 and the condition does not “arise from or purpor t to implement any st atutory prohibition.” ( People v. Rodriguez (2013) 222 Cal.App.4th 578, 592 ( Rodriguez ).) We will modify the

condition to read as follows: “Totally abstain from the us e of beverages you know or reasonably should know to be alcoholic; do not purchase or posse ss any beverage you know or reasonably should know to be alcoholic; stay out of places where you know or reasonably should know that alc ohol is the main item of sale.” We also agree with defendant that a kno wledge element should be added to the second challenged probati on condition, which states: “Not use or possess alcohol/narcotics, intoxicants, drugs, or other controlled substances without the prescription of a physician; not traffic in, or associate with persons you know to use or

traffic in narcotics or other controlled s ubstances.” Our conclusion comports with Rodriguez, supra, 222 Cal.App.4th 578, in which this court addressed a nearly identical

condition. While this court found that a scie nter element was “reasonably implicit in the

condition” to the extent it re inforced the defendant’s obl igations under California’s Uniform Controlled Substances Act, we de termined that a knowledge element was required because the condition wa s “not limited to substances regulated by statute.” ( Id. at pp. 593, 594.) In fact, the Attorney Ge neral agrees that “standing alone, the term intoxicants is unclear,” and the Attorney General does not object to inclusion of a knowledge element as to that term. The Attorney Genera l also suggests that we modify this probation condition to delete the referen ce to alcohol, “since the use or possession of alcoholic beverages is already covered” by th e other probation condition. Thus, we will modify the condition to read as follows: “Not knowingly use or possess narcotics, intoxicants, drugs, or other controlled substanc es without the prescription of a physician; not traffic in, or associate with persons you kn ow to use or traffic in narcotics or other

controlled substances.”6 IV. DISPOSITION The judgment is modified as follows: The probation condition reading “Tota lly abstain from the use of alcoholic beverages, not purchase or posse ss alcoholic beverages, and stay out of places when it is

the main item of sale” is modi fied to read as follows: “T otally abstain from the use of beverages you know or reas onably should know to be al coholic; do not purchase or possess any beverage you know or reasonably sh ould know to be al coholic; stay out of places where you know or reasonably should kn ow that alcohol is the main item of sale.” The probation condition reading “Not use or possess alcohol/narcotics, intoxicants, drugs, or other controlled substanc es without the prescription of a physician; not traffic in, or associate with persons you kn ow to use or traffic in narcotics or other

controlled substances” is modified to read as follows: “Not knowingly use or possess narcotics, intoxicants, drugs, or other controlled substances7 without the prescription of a physician; not tra ffic in, or associate w ith persons you know

to use or traffic in narcotics or other controlled substances.” As so modified the judgment (o rder of probation) is affirmed.

_____________ _______________ _______________ BAMATTRE-MANOUKIAN, ACTING P.J.

WE CONCUR:

_____________ _____________ MÁRQUEZ, J.

_____________ _____________ GROVER, J.