Filed 1/14/ 16 P. v. Vargas CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication
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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 month s 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 mor e 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 possessin g the

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

§ 4060). She also admit ted 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 cont aining 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

O n 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 kno w s illegal drugs or non

- prescribed c o ntrolled

substances are used or sold.” At sentencing, the court ann ounced 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 recomme nded knowledge element.

D efendant 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 constitut ionality 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

P ossession 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. W hen a probation condition reinforce s a probationer ’ s obligations under the

California Uniform Controlled Substances Act , we understand the condition to includ e
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 t he 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 knowle dge elements have been

added to conditions prohibitin g 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 t his 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 t he condition has been violated. ( In re

Sheena K

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



### DISPOSITION

The challenged probation condition is ordered modified to pr ovide “ 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 i s affirmed.____________________________________ Grover, J.

WE CONCUR:

____________________________ Rushing , P.J.

____________________________ Márquez , J.

The People v Vargas H0 41094