Filed 9/21/18 P. v. Vitorelo CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

About 1:00 a.m. on the morning of November 14, 2015, police officers heard sounds of an argument coming from a parking lot in San Rafael. After entering the lot, the officers interviewed several persons who told them appellant possessed a gun. The officers detained appellant, who had exited the driver’s seat of a vehicle and was walking away, and searched his vehicle, finding a handgun loaded with a single bullet in the glove compartment.

The Marin County District Attorney charged appellant with carrying a concealed firearm within a vehicle without being the registered owner (Pen. Code, § 25400, subds. (a)(1) and (c)(6)),[1] and appellant pleaded guilty to the charge pursuant to a negotiated disposition. The court reduced the conviction to a misdemeanor (§ 17, subd. (b)) and sentenced appellant to informal probation for three years.

One of the conditions of probation is that appellant “shall not use, consume or possess any non-prescribed or illegal substances, including prescribed medicinal marijuana, unless specifically authorized by the court.” The sole issue on this appeal is whether, as appellant claims, the phrase “non-prescribed” is “unconstitutionally vague and overbroad” and must be modified, as by providing instead “that appellant shall not knowingly use, consume or possess non-prescribed substances.”

Appellant did not raise this issue in the sentencing court but maintains he did not have to. Citing In re Sheena K. (2007) 40 Cal.4th 875, 885, appellant contends that probation conditions challenged on the grounds of unconstitutional vagueness and overbreadth present pure issues of law and do not require objections below because the error is “capable of correction without reference to the particular sentencing record developed in the trial court.” (Id. at p. 887.) The Attorney General does not disagree. Constitutional challenges to a probation condition are reviewed de novo (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143), and appellate courts are empowered to modify an unconstitutional condition in order to render it constitutional. (In re Sheena K., supra, 40 Cal.4th at p. 892.)

Finding that the challenged condition included an implicit requirement of knowing possession affording appellant fair notice of the conduct required of him, and is therefore not unconstitutionally vague, we shall affirm the judgment.

I.

Appellant contends the challenged condition is vague under the Fifth and Fourteenth Amendments to the United States Constitution because “[t]he category of ‘non-prescribed substances’ is susceptible to different interpretations. The prohibitions in this category are not limited to substances regulated by statute, but would appear to extend to intoxicants and to drugs that are not illegal but are not prescribed for appellant. Perhaps what the court was driving at was ‘prescription medication without a prescription,’ i.e., painkillers, sleeping pills, valium. The terms ‘non-prescribed substances’ must be better described and defined. In any event, the language of this category of the condition does not notify appellant of what is required of him.” (Citing In re Sheena K., supra, 40 Cal.4th at p. 890.)

The challenged condition is also constitutionally deficient, appellant maintains, “in that it fails to set a clear standard of conduct and thus subjects appellant to being charged and convicted of an unwitting violation of the conditions. A knowledge requirement for conditions of this nature is appropriate and should not be left to inference.” (Citing People v. Moses (2011) 199 Cal.App.4th 374, 380-381.)

II.

Appellant justifiably anticipated that the Attorney General would contest his vagueness claim on the basis of the recent opinion of our Supreme Court in People v. Hall (2017) 2 Cal.5th 494 (Hall), which both parties correctly consider the controlling authority. The defendant in Hall was convicted of possessing cocaine for sale and placed on probation prohibiting him from possessing firearms or illegal drugs. The parties agreed that the defendant could not be deemed in violation of the conditions if his possession or control of the prohibited items was unwitting, and that a probation violation could occur only if the defendant knowingly owned or possessed these items or had them in his possession or control. Consequently, the issue presented in Hall was “not what state of mind is required to sustain a violation of probation, but the extent to which that state of mind must be expressly articulated in the probation condition itself to provide defendant with fair warning of what the condition requires.” (Id. at p. 500.) Addressing the issue, the court stated that “[i]n determining whether the condition is sufficiently definite, however, a court is not limited to the condition’s text. [Citation.] We must also consider other sources of applicable law [citation], including judicial construction of similar provisions. [Citations.] Thus, a probation condition should not be invalidated as unconstitutionally vague ‘ “ ‘if any reasonable and practical construction can be given to its language.’ ” ’ [Citation.]” (Id. at pp. 500-501.)

In light of this legal backdrop, the Supreme Court concluded that the firearms and narcotics conditions were not unconstitutionally vague because “California case law already articulates not only a general presumption that a violation of a probation condition must be willful, but also specifically provides that probation conditions barring possession of contraband should be construed to require knowledge of its presence and its restricted nature. [Citation] The requisite scienter for these probation conditions is thus easily ascertainable by reference to ‘ “other definable sources” ’ that make sufficiently clear the conditions’ scope. [Citation.]” (Hall, supra, 2 Cal.5th at p. 501.) “For example,” the Hall court pointed out, “we have construed statutes prohibiting possession of controlled substances to require knowledge of the presence of and illegal character of the drug, even though the statutes themselves fail to include a reference to any mental state. [Citations.] The mere fact that a statute must be interpreted to determine the required mental state does not render a criminal statute—or a probation condition—unconstitutionally vague. [Citations.] So long as the requisite scienter is readily discernible, its omission from the text of the statute or probation condition poses little risk of ‘trap[ping] the innocent.’ [Citations.]” (Id. at pp. 501-502.)

The defendant in Hall conceded that a “potential solution” to the vagueness problem in that case would be to “ ‘construe’ ” the firearms and narcotics conditions as requiring knowledge of the contraband’s presence and its restricted nature, as other courts had done in analogous situations, but insisted that the superior alternative was to modify the condition to obtain “ ‘absolute clarity.’ ” (Hall, supra, 2 Cal.5th at p. 502.) The Supreme Court refused to do so, noting that the question was “not whether this degree of precision would be desirable in principle, but whether it is constitutionally compelled. As we have previously observed, the vagueness doctrine demands ‘ “no more than a reasonable degree of certainty.” ’ [Citation.]” (Ibid., citing People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117.)

Appellant argues that Hall is “readily distinguishable . . . because the present case is not about whether the possession was knowing or unknowing; rather, it concerns the court’s failure to articulate the terms of probation in language that can be understood by a reasonable probationer” and the substance at issue in Hall constituted contraband, which is not at issue in this case.[2] According to appellant, the category of “non-prescribed substances” is unconstitutionally overbroad because innocuous objects used in everyday life—such as “toothpaste, mouthwash, bath salts, and over the counter medications like Tylenol or Sudafed”—could be construed as prohibited “non-prescribed substances.” Thus, appellant argues, “an express knowledge requirement—that appellant shall not knowingly use, consume or possess non-prescribed substances—would be helpful in curing vagueness, and would still be permissible after Hall.” Furthermore, he points out, Hall expressly allows that a trial court “ ‘remains free to specify the requisite mens rea explicitly when imposing a condition of probation.’ ” (Citing Hall, supra, 2 Cal.5th at pp. 503-504.)

Appellant fails to persuade us that the challenged probation condition must be modified.

Appellant effectively acknowledges that he understands what the challenged condition means or, as he says, “what the court was driving at,” which is the use of “ ‘prescription medication without a prescription,’ i.e., pain killers, sleeping pills, valium.” In other words, appellant knows very well what the condition means but maintains nevertheless that it “must be better described and defined.” Thus, what the Hall court said of the defendant in that case may also be said of appellant: “At core, what [he] seeks through modification is ‘absolute clarity’ in the text of the condition itself, without the need to rely on ‘a judicial construction.’ But the question before us is not whether this degree of precision would be desirable in principle, but whether it is constitutionally compelled. As we have previously observed, the vagueness doctrine demands ‘ “no more than a reasonable degree of certainty.” ’ [Citation.]” (Hall, supra, 2 Cal.5th at p. 503, citing Acuna, supra, 14 Cal.4th at p. 1117.)

The condition challenged in this case is reasonably certain. There is no genuine possibility appellant would be held in violation of the condition for the use of “toothpaste, mouthwash, bath salts, and over the counter medications like Tylenol and Sudafed.” On the contrary, the condition is properly construed in the very same way that appellant assumes: as prohibiting the knowing use of a medication that requires a physician’s prescription without such a prescription. Finally, it is true, as appellant says, that the trial court was free to define the condition with greater clarity—and it probably would have if appellant had asked it to do so at the time of sentencing—but that does not require us to modify the condition “to make explicit what the law already makes implicit.” (Hall, supra, 2 Cal.5th at p. 503.)

III.

For the foregoing reasons, the judgment of the superior court is affirmed.

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Kline, P.J.

We concur:

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Stewart, J.

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Miller, J.

People v. Vitorelo (A150120)