F iled 6/5/15 P. v. Lopez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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. No s . 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 cons ume 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 C ourt should add a knowledge requirement. We will accept the Attorney General’s concession and modify the condition to add a knowledge requirement.

F ACTS
The parties entered into a negotiated disposition of these cases before the preliminary hearing. A lt hough the court ordered a “waived referral” report from the2

p robation 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.

P ROCEDURAL H ISTORY

Case No. C1475081: the Drug Case

In January 2014, the prosecution filed a felony complaint ( case No. C1475081 ) charging defendant wi th three counts of selling methamphetamine (Health & Saf. Code, § 11379, subd. (a), a felony) . The complaint alleged the sales o ccurred o n December 18, 2013, December 27, 2013, and January 8, 2014. We wi ll 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 stole n 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 a nd March 25, 2013, and the rec eiving stolen property c ount occurred on or about August 29, 2013. We wi ll sometimes refer to
this case as the “receiving stolen property case.”

Case Nos. C1242033 and C1358193 : Prior Misdemeanor Convictions

At the time of the offens es 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 not3

clear from the record on appeal , b ut we may infer t hat 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 pr obation

. In exchange for a felony sentence of two years (§ 1170, subd. (h)) , defen dant pleaded no contest to one count of selling
metha mphetamine in the drug case, and possession of an alter ed check ( count 1) and receiving s tolen property ( count 3) in the receiving stolen property case. Pursuan t 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 Propositi on 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 dru g sale count. The court imposed a split sentence under section 1170, subdivision (h)(5) and ordered that the second ye ar of defendant’s jail term would be suspended and that she would be releas ed under the mandatory supervision of the probation department. The court i mposed several4

conditions of mandatory supervision, as well as fines and fees. In both felony cases, t he conditions of mandatory supervision included that defendant “shall not pos sess 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.

D ISCUSSION

D efendant contend s the condition of her mandatory supervision that she “shall not possess or consume alcohol or illeg al 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 u nknowingly 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 knowin g 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 m andatory supervision is the equivalent of granting probation or giving a conditional sentence. Indeed, section 1170, subdivision (h), comes5

into play only after probation has been denied.” ( People v. Fandinola (20 13)
221 Cal.App.4th 1415, 1422 ( Fandinola ) .) In Fandinola , the court concl uded that “mandatory supervision is more similar to parole than probation.” ( Id. at p. 1423 .) The
court reasoned that u nder 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
condi tions 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 m embers 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 soci ety as constructive individuals , (2) to end criminal
careers thr ough 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 r elated 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, “t he validity and reasonableness of parol e conditions is analyzed under the same standard as that
devel oped for probation conditions.” ( Martinez , supra , 226 Cal.App.4th at p. 764.)
S ince mandatory supervision is similar to parole, we apply the standards that are applicable to probation conditio ns to condition s of mandatory supervision.6

Whether a probation condition is unconstitutionally vague or overbroad presents a question of law, which we review de novo. ( In re Sheena K. (2 007) 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 p articular 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 condit ion 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 le gitimate 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 . (20 10) 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 [co nstitutional] 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

__ [ 2 015 Cal.App. Lexis 422 , * 4 , fn. 3 ] ( Hall ) .)
I n 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 vaguenes s 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 so7

vague that men [or wome n] of common intelligence must necessarily guess at its meaning and differ as to its application.” ’ ” ( Id. at p. 890.) The court concluded that, i n 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 pr ohibit ed from associating. ( Id. at p. 891 .)
As this court has observed: “In a variety of contexts, .

. . California ap pellate 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.) P robatio n conditions
have been modifi ed 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 f rom 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 s exually exp licit material, (2) associating with minors , or (3) frequenting places where minor s 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, 9 49

- 950 [probation condition prohibiting association with gang members modified to add knowledge re quirement ]

. ) Both parties cite this court’s decis ion in People v. Rodriguez (2013) 222 Cal.App.4th 578 ( Rodriguez ). T he defendant in Rodriguez challenged, among other things, a pro bation condition that stated: “ ‘Not use or possess alcohol, intoxicants, narcotics, or other controlled substances without the pr escription 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 implicit8

knowledge requirement. ( Rodriguez , at p. 593.) Thus, Rodriguez reasoned that to the extent the challenged probation con dition reinforced the defendant’ s statutory obligations, “the same knowledge element wh ich ha[d] been found to be implicit in those statutes [was] reasonably implicit in the condition

. ” ( Ibid. ) Nevertheless, th is court
ordered the condition modified to add an express knowledge requirement because the
condition included alcohol and “intoxic ants,” 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
condition s 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 knowled ge requirement into the condition being challenged. (Accord, Hall , at p. *10.) T he 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
h aving to “ revisit th e 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 cond ition 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. Piral i (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 f or 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 p p

. * 14

- *15 ] .) As in this case , the defendant in Hall argued that9

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 unwittingl y 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 re quirement 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
bro wnie but does not know it contains marijuana, he will lack the necessary mens rea to be found in violation of his probation. ” ( Id. at p p

. * 22

- * 23 .) The court also concluded that “ modifying vague category conditions to incorporate a requirement that the
p robationer must knowingly violate the condition is imprecise and unnecessary to protect against unwitting violations. ” ( Id. at p p

. * 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 e ven if the addition of a knowledge requirement is not required on constitutional grounds, as the court held in
Hall , we beli eve the addition of such language is good practice to insure defendant is10

fully informed of the proscriptions placed on her conduct , in the interest of promoting her
rehabilitation

. As this court noted in Rodriguez , “ t he addition of an express knowledge

r equirement 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.”

D ISPOSITION

The condition of def endant’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 i s affirmed._______________________________ Márquez, J.

WE CONCUR:

____________________________________________ Bamattre

- Manoukian , Acting P. J.

______________________________ Mihara , J.