Filed 1/14/16 P. v. Vargas CA6

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

YARELI VARGAS,

Defendant and Appellant.

 H041094

 (Santa Clara County

 Super. Ct. No. F1450225)

In exchange for a grant of felony probation with six months custody time, 

defendant Yareli Vargas waived her right to a preliminary examination and trial, and 

pleaded no contest to having sexual intercourse with a minor more than three years her 

junior (count 1; Pen. Code, §261.5, subd. (c)), possessing methamphetamine (count 2; 

Health & Saf. Code, § 11377, subd. (a)), and the misdemeanor of possessing the 

controlled substance Vicodin without a prescription (count 3; Bus. & Prof. Code, 

§ 4060). She also admitted violating probation in another case. Defendant and the 

prosecutor waived a full probation report. 1

 

1

 Due to the lack of a preliminary hearing and a complete probation report, the 

complaint and amended complaint provide the only details of the crimes. In signing the 

waiver of rights form, the trial court found a factual basis for the plea. Defense counsel 

stipulated in writing to a factual basis. Defense counsel’s stipulation did not refer to any 

document containing the facts and the trial court, in taking defendant’s no contest pleas, 

did not inquire about the factual basis. (Pen. Code, § 1192.5.)
2

On appeal defendant challenges one probation condition that provides, “She may 

not possess or use illegal drugs or go to places where they’re used or sold.”

2

 She 

contends this condition is unconstitutionally vague and overbroad due to its lack of an 

express knowledge requirement. The Attorney General contends that a knowledge 

component is implicit in possession, but concedes that the location prohibition requires 

an express knowledge element. For the reasons stated below, we will accept the Attorney 

General’s concession and will affirm the judgment as modified.

In the waived referral probation report, among 17 recommended probation 

conditions was “[t]he defendant shall not possess or use illegal drugs or illegal controlled 

substances or go anywhere he/she knows illegal drugs or non-prescribed controlled 

substances are used or sold.” At sentencing, the court announced its “intention to follow 

through with the negotiated disposition of six months, including the [violation of 

probation], plus the other helpful conditions of probation.” The court orally imposed the 

challenged condition without including the recommended knowledge element. 

Defendant did not object to any of the terms and conditions of probation. 

DISCUSSION

In People v. Rodriguez (2013) 222 Cal.App.4th 578, on which the Attorney 

General relies, this court recognized that we may review the constitutionality of probation 

conditions for the first time on appeal. (Id. at p. 585.) One of the conditions at issue in 

Rodriguez was much like the one challenged here. We adhere to the conclusions of 

Rodriguez without restating the reasoning.

 

2

 Defendant’s opening brief challenged imposition of a probation supervision fee 

not to exceed $110 monthly, but by letter she has since properly conceded that the 

contention is forfeited in light of recent decisions in People v. Trujillo (2015) 

60 Cal.4th 850 and People v. Aguilar (2015) 60 Cal.4th 862.
3

Possession and Use

A reasonable reader would understand a probation condition prohibiting 

possession and consumption of illegal drugs as mirroring provisions of California’s 

Uniform Controlled Substances Act (Health & Saf. Code, § 11000, et seq.). Case law has 

identified knowledge elements as implicit in statutes prohibiting possession of controlled 

substances. When a probation condition reinforces a probationer’s obligations under the 

California Uniform Controlled Substances Act, we understand the condition to include

the same implicit knowledge elements as the underlying statutes. (Rodriguez, supra, 222 

Cal.App.4th at p. 593.) The implicit knowledge component is constitutionally clear in 

the challenged condition without being express. (Id. at p. 592.)

Places Where Drugs are Used or Sold

While the Controlled Substances Act prohibits possession of controlled 

substances, it does not prohibit mere physical proximity to them. In People v. Kim

(2011) 193 Cal.App.4th 836, this court noted that express knowledge elements have been 

added to conditions prohibiting presence in locations where prohibited activity may not 

be obvious to all. (Id. at p. 845.) Although all alleged violations of probation conditions 

must be shown to be willful (People v Cervantes (2009) 175 Cal.App.4th 291, 295), 

adding an express knowledge requirement to this aspect of the probation condition will 

ensure that the condition is sufficiently precise for defendant to know what conduct is 

prohibited and for a court to determine when the condition has been violated. (In re 

Sheena K. (2007) 40 Cal.4th 875, 890.) 

DISPOSITION

The challenged probation condition is ordered modified to provide “Defendant 

may not possess or use illegal drugs or go to places where she knows or should know 

they are used or sold.” As so modified, the judgment is affirmed.
____________________________________

Grover, J.

WE CONCUR:

____________________________

Rushing, P.J. 

____________________________

Márquez, J. 

The People v Vargas

H041094