Filed 6/5/15 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

DOROTHY MARIE LOPEZ,

Defendant and Appellant.

 H041154

 (Santa Clara County

 Super. Ct. Nos. C1475081, C1478815)

Defendant Dorothy Marie Lopez challenges a condition of her mandatory 

supervision (Pen. Code, § 1170, subd. (h)(5)) in two felony cases, which directs that she 

“shall not possess or consume alcohol or illegal controlled substances . . . .” Defendant 

contends this condition is vague and overbroad because it does not contain a knowledge 

requirement. The Attorney General agrees that the condition is unconstitutionally vague 

and that this Court should add a knowledge requirement. We will accept the Attorney 

General’s concession and modify the condition to add a knowledge requirement.

FACTS

The parties entered into a negotiated disposition of these cases before the 

preliminary hearing. Although the court ordered a “waived referral” report from the 
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probation department, there is no probation report in the record. We therefore have no 

information regarding the underlying facts that led to the charges in this case.

PROCEDURAL HISTORY

Case No. C1475081: the Drug Case

In January 2014, the prosecution filed a felony complaint (case No. C1475081) 

charging defendant with three counts of selling methamphetamine (Health & Saf. Code,

§ 11379, subd. (a), a felony). The complaint alleged the sales occurred on December 18, 

2013, December 27, 2013, and January 8, 2014. We will sometimes refer to this case as 

the “drug case.”

Case No. C1478815: the Receiving Stolen Property Case

In March 2014, the prosecution filed a second felony complaint (case 

No. C1478815) charging defendant with: (1) one count of possessing an altered and 

fictitious check (Pen. Code, § 476, a felony, count 1); (2) one count of check forgery 

(Pen. Code, § 470, subd. (d), a felony, count 2); and (3) one count of receiving stolen 

property (a checkbook) (Pen. Code, § 496, subd. (a), a felony, count 3). (All further 

undesignated statutory references are to the Penal Code.) The complaint alleged the first 

two counts occurred between December 1, 2012 and March 25, 2013, and the receiving 

stolen property count occurred on or about August 29, 2013. We will sometimes refer to 

this case as the “receiving stolen property case.” 

Case Nos. C1242033 and C1358193: Prior Misdemeanor Convictions

At the time of the offenses alleged in the two felony cases, defendant was on 

probation in two previous misdemeanor cases (case Nos. C1242033 and C1358193). The 

nature and number of offenses for which defendant was convicted in those cases is not 
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clear from the record on appeal, but we may infer that case No. C1358193 involved a 

drug offense, since defendant was on Proposition 36 probation (§ 1210, et. seq.) in that 

case. As a result of her new felony offenses, defendant was charged with violations of 

probation in her misdemeanor cases. 

Plea

In May 2014, the parties entered into a negotiated disposition of the two new 

felony cases and the alleged violations of probation. In exchange for a felony sentence of 

two years (§ 1170, subd. (h)), defendant pleaded no contest to one count of selling

methamphetamine in the drug case, and possession of an altered check (count 1) and 

receiving stolen property (count 3) in the receiving stolen property case. Pursuant to the 

parties’ agreement, the second year of defendant’s felony sentence would be suspended,

with release into the community under the mandatory supervision of the probation 

department. (§ 1170, subd. (h)(5).) As part of the agreement, defendant also admitted 

the probation violations in the misdemeanor cases, on the condition that her Proposition 

36 probation would be terminated and she would be sentenced to a concurrent term in 

one case and probation would be reinstated and terminated in the other case. 

Sentencing

On June 5, 2014, the court sentenced defendant in accordance with the terms of 

the plea agreement. The court designated the possession of an altered check count as the 

principal term and sentenced defendant to the middle term of two years. The court 

imposed the middle term of two years, concurrent, on the receiving stolen property count, 

and the lower term of two years, concurrent, on the drug sale count. The court imposed a

split sentence under section 1170, subdivision (h)(5) and ordered that the second year of 

defendant’s jail term would be suspended and that she would be released under the 

mandatory supervision of the probation department. The court imposed several 
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conditions of mandatory supervision, as well as fines and fees. In both felony cases, the 

conditions of mandatory supervision included that defendant “shall not possess or 

consume alcohol or illegal controlled substances . . . .”

In the misdemeanor drug case, the court terminated defendant’s Proposition 36 

probation and imposed a 90-day jail sentence, concurrent, which was deemed served 

based on defendant’s custody credits. In the other misdemeanor case, the court reinstated 

probation on the original terms and conditions. 

DISCUSSION

Defendant contends the condition of her mandatory supervision that she “shall not 

possess or consume alcohol or illegal controlled substances,” is unconstitutionally vague 

and overbroad because it does not contain a knowledge requirement. (We shall hereafter 

refer to this condition as the “drug and alcohol condition.”) Defendant provides several 

examples of ways in which she could unknowingly violate the drug and alcohol condition 

and urges us to modify the condition to include a knowledge element. She asserts, “[f]or 

example, she could be carrying a friend’s back pack and be in constructive possession of 

its contents without knowing it contained a can of beer,” or she could violate the 

condition by borrowing a car and driving it without knowing there was alcohol in the 

trunk, or a friend could bring alcohol into defendant’s home and leave it there without 

defendant’s knowledge. The Attorney General agrees that the condition is 

unconstitutionally vague and that “this Court may add a knowledge requirement.” 

A threshold question is whether a condition of mandatory supervision is treated 

the same as a condition of probation. Although mandatory supervision is to be monitored 

by county probation officers “in accordance with the terms, conditions, and procedures 

generally applicable to persons placed on probation” (§ 1170, subd. (h)(5)(B)(i)), “this 

does not mean placing a defendant on mandatory supervision is the equivalent of granting 

probation or giving a conditional sentence. Indeed, section 1170, subdivision (h), comes 
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into play only after probation has been denied.” (People v. Fandinola (2013) 

221 Cal.App.4th 1415, 1422 (Fandinola).) In Fandinola, the court concluded that

“mandatory supervision is more similar to parole than probation.” (Id. at p. 1423.) The 

court reasoned that under section 667.5, subdivision (b), “prior prison terms” include a 

“ ‘term imposed under the provisions of paragraph (5) of subdivision (h), of [s]ection 

1170, wherein a portion of the term is suspended by the court to allow mandatory 

supervision.’ ” (Fandinola, at p. 1422.) “Thus, the Legislature has decided a county jail 

commitment followed by mandatory supervision imposed under section 1170, 

subdivision (h), is akin to a state prison commitment; it is not a grant of probation or a 

conditional sentence.” (Fandinola, at p. 1422.) We therefore analyze the validity of

conditions of mandatory supervision under standards applied to terms and conditions of 

parole. (People v. Martinez (2014) 226 Cal.App.4th 759, 763 (Martinez).)

Although a parolee is no longer confined in prison, his or her status requires 

restrictions that may not be imposed on members of the public generally. (People v. 

Lewis (1999) 74 Cal.App.4th 662, 669-670.) The fundamental goals of parole are: (1) to 

help parolees reintegrate into society as constructive individuals, (2) to end criminal 

careers through the rehabilitation of those convicted of crime, and (3) to help them 

become self-supporting. (Martinez, supra, 226 Cal.App.4th at p. 763.) “In furtherance of 

these goals, ‘[t]he state may impose any condition reasonably related to parole 

supervision.’ [Citation.] These conditions ‘must be reasonably related to the compelling 

state interest of fostering a law-abiding lifestyle in the parolee.’ ” (Ibid.)

Despite the differences between probation and parole, “the validity and 

reasonableness of parole conditions is analyzed under the same standard as that 

developed for probation conditions.” (Martinez, supra, 226 Cal.App.4th at p. 764.)

Since mandatory supervision is similar to parole, we apply the standards that are 

applicable to probation conditions to conditions of mandatory supervision.
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Whether a probation condition is unconstitutionally vague or overbroad presents a 

question of law, which we review de novo. (In re Sheena K. (2007) 40 Cal.4th 875, 888 

(Sheena K.).) Defendant did not object to the drug and alcohol condition in the trial 

court. But a reviewing court may examine the constitutionality of a probation condition 

on appeal without objection in the trial court if it is capable of correction as a matter of 

law without reference to the particular sentencing record in the trial court. (Sheena K., 

supra, 40 Cal.4th at pp. 878-879, 888-889.)

“A probation condition that imposes limitations on a person’s constitutional rights 

must closely tailor those limitations to the purpose of the condition to avoid being 

invalidated as unconstitutionally overbroad.” (People v. Olguin (2008) 45 Cal.4th 375,

384, quoting Sheena K., supra, 40 Cal.4th at p. 890.) “The essential question in an 

overbreadth challenge is the closeness of the fit between the legitimate purpose of the 

restriction and the burden it imposes on the defendant’s constitutional rights—bearing in 

mind, of course, that perfection in such matters is impossible, and that practical necessity 

will justify some infringement.” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153 (E.O.).)

A “probation condition ‘must be sufficiently precise for the probationer to know 

what is required of him [or her], and for the court to determine whether the condition has 

been violated,’ if it is to withstand a [constitutional] challenge on the ground of 

vagueness. [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890.) In short, “overbreadth 

involves the scope of a directive while vagueness involves its clarity.” (People v. Hall

(May 15, 2015, A141278) __ Cal.App.4th __ [2015 Cal.App. Lexis 422, *4, fn. 3]

(Hall).)

In considering a condition prohibiting a minor from associating with “ ‘anyone 

disapproved of by probation,’ ” the California Supreme Court in Sheena K reasoned that 

the foundation of a vagueness challenge is the due process concept of “ ‘fair warning.’ ”

(Sheena K., supra, 40 Cal.4th at pp. 889-890.) The vagueness doctrine “bars 

enforcement of ‘ “a statute which either forbids or requires the doing of an act in terms so 
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vague that men [or women] of common intelligence must necessarily guess at its 

meaning and differ as to its application.” ’ ” (Id. at p. 890.) The court concluded that, in 

the absence of “an express requirement of knowledge,” the challenged probation 

condition was unconstitutionally vague because it did not give advance notice to the 

minor of the persons with whom she was prohibited from associating. (Id. at p. 891.)

As this court has observed: “In a variety of contexts, . . . California appellate 

courts have found probation conditions to be unconstitutionally vague or overbroad when 

they do not require the probationer to have knowledge of the prohibited conduct or 

circumstances.” (People v. Kim (2011) 193 Cal.App.4th 836, 843.) Probation conditions 

have been modified in a host of cases where they failed to include language requiring the 

probationer’s knowing violation of the condition. (See e.g., People v. Petty (2013) 

213 Cal.App.4th 1410, 1424-1425 [condition prohibiting the defendant from coming 

within 100 yards of the victim or her daughter modified to add knowledge requirement]; 

People v. Moses (2011) 199 Cal.App.4th 374, 376-377 (Moses) [probation conditions 

prohibiting the defendant from (1) owning, using, or possessing sexually explicit 

material, (2) associating with minors, or (3) frequenting places where minors congregate 

modified to add knowledge requirement]; In re Victor L. (2010) 182 Cal.App.4th 

902, 911-912, 931 [condition prohibiting minor from associating with “anyone [with] 

whom a parent or Probation Officers prohibit association” modified to add knowledge 

requirement]; People v. Leon (2010) 181 Cal.App.4th 943, 949-950 [probation condition 

prohibiting association with gang members modified to add knowledge requirement].)

Both parties cite this court’s decision in People v. Rodriguez (2013) 222 

Cal.App.4th 578 (Rodriguez). The defendant in Rodriguez challenged, among other 

things, a probation condition that stated: “ ‘Not use or possess alcohol, intoxicants,

narcotics, or other controlled substances without the prescription of a physician . . . .’ ” 

(Id. at p. 592.) This court observed that case law had interpreted the California Uniform 

Controlled Substances Act (Health & Saf. Code, § 11000 et seq.) as including an implicit 
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knowledge requirement. (Rodriguez, at p. 593.) Thus, Rodriguez reasoned that to the 

extent the challenged probation condition reinforced the defendant’s statutory 

obligations, “the same knowledge element which ha[d] been found to be implicit in those 

statutes [was] reasonably implicit in the condition.” (Ibid.) Nevertheless, this court 

ordered the condition modified to add an express knowledge requirement because the 

condition included alcohol and “intoxicants,” and was not limited to substances regulated 

by statute. (Id. at pp. 593-594.)

A line of cases has examined the need to add a knowledge requirement to 

probation conditions that have been described as “category conditions,” i.e., probation 

conditions that prohibit conduct “related to a category of associations, places, or items.” 

(Hall, supra, __ Cal.App.4th __ [2015 Cal.App. Lexis 422, at p. *4].) As we have noted, 

appellate courts have modified vague category conditions on a case-by-case basis to 

incorporate a knowledge requirement into the condition being challenged. (Accord, Hall, 

at p. *10.) The Third District Court of Appeal took a different approach in People v. 

Patel (2011) 196 Cal.App.4th 956 (Patel). Frustrated with the “dismaying regularity” of 

having to “revisit the issue in orders of probation,” the court incorporated, by operation of 

law, a blanket knowledge requirement into all category conditions. (Id. at p. 960 [“We 

construe every probation condition proscribing a probationer’s presence, possession, 

association, or similar action to require the action be undertaken knowingly”].) But other 

courts have declined to follow Patel. (Hall, at p. *10, citing People v. Pirali (2013) 217 

Cal.App.4th 1341, 1351; Moses, supra, 199 Cal.App.4th at pp. 380-381; and People v. 

Garcia (1993) 19 Cal.App.4th 97, 102-103.)

Recently, in Hall, the First District Court of Appeal observed that “[f]ailing to 

distinguish between the reasons for using a knowledge requirement to modify a vague 

category condition and mens-rea principles has led some appellate courts to modify 

conditions imprecisely or unnecessarily.” (Hall, supra, __ Cal.App.4th __ [2015 

Cal.App. Lexis 422, at pp. *14-*15].) As in this case, the defendant in Hall argued that 
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the word “knowingly” must be inserted into two probation conditions that admonished 

him to stay away from weapons and illegal drugs “because without it he could be found 

to violate probation by unwittingly doing something prohibited.” (Id. at pp. *1, *22.) 

The court disagreed. The court stated, “contrary to Hall’s argument, there is nothing that 

requires sentencing courts to include, or appellate courts to incorporate, a requirement 

that the probationer ‘knowingly’ violate a condition in order to protect against 

enforcement of unwitting violations.” (Id. at p. *17.) “[T]he best approach is for 

appellate courts to incorporate an express knowledge requirement into category 

conditions only when necessary to cure a truly vague category, and then to do so by 

incorporating a requirement that the probationer know the association, place, or item falls 

within the prohibited category.” (Id. at p. *18; original italics.) The court reasoned that 

the “implied mens rea of willfulness must be established to find a probation violation, 

and this protects [the probationer] from being punished for an unwitting failure to comply 

with a condition. If he borrows a jacket but does not know it contains a weapon or eats a 

brownie but does not know it contains marijuana, he will lack the necessary mens rea to 

be found in violation of his probation.” (Id. at pp. *22-*23.) The court also concluded 

that “modifying vague category conditions to incorporate a requirement that the 

probationer must knowingly violate the condition is imprecise and unnecessary to protect 

against unwitting violations.” (Id. at pp. *23-*24; original italics.) For these reasons, the 

Hall court held that the probation conditions at issue in that case were not 

unconstitutionally vague. (Id. at pp. *18-*24.)

As in Hall, defendant here challenges a “category condition” of her mandatory 

supervision that prohibits her from possessing alcohol or illegal controlled substances,

arguing that it is unconstitutionally vague because it lacks a knowledge requirement,

which could lead to unwitting violations of the condition. But even if the addition of a 

knowledge requirement is not required on constitutional grounds, as the court held in 

Hall, we believe the addition of such language is good practice to insure defendant is 
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fully informed of the proscriptions placed on her conduct, in the interest of promoting her 

rehabilitation. As this court noted in Rodriguez, “the addition of an express knowledge 

requirement will eliminate any potential for vagueness or overbreadth in applying the 

condition.” (Rodriguez, supra, 222 Cal.App.4th at p. 594.) To prevent arbitrary 

enforcement and to provide clear notice of what conduct will constitute a violation, we 

will accept the Attorney General’s concession and, as requested by the parties, will 

modify the drug and alcohol condition as follows: “You shall not knowingly possess or 

consume alcohol or illegal controlled substances.”

DISPOSITION

The condition of defendant’s mandatory supervision that she “shall not possess or 

consume alcohol or illegal controlled substances,” is modified as follows: “You shall not 

knowingly possess or consume alcohol or illegal controlled substances.” As so modified, 

the judgment is affirmed.
_______________________________

Márquez, J.

WE CONCUR:

____________________________________________

 Bamattre-Manoukian, Acting P. J.

______________________________

 Mihara, J.