Filed 10/22/14 P. v. Box CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040213
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1235255)

         v.

OSHAWA BOX,

         Defendant and Appellant.


         Following the denial of his “Hobbs Motion” for discovery and to quash and
traverse a search warrant and suppress evidence, defendant Oshawa Box pleaded no
contest to the charged offenses pursuant to a negotiated plea agreement. On appeal,
defendant asks this court to review the appellate record, including sealed documents, to
determine whether the court properly denied his Hobbs Motion. (See People v. Hobbs
(1994) 7 Cal.4th 948, 955-957, 975 (Hobbs); see also Pen. Code, § 1538.5, subd. (m);1
Cal. Rules of Court, rule 8.304(b)(4)(A).) He also raises a facial constitutional challenge
to a probation condition. (See Cal. Rules of Court, rule 8.304(b)(4)(B).)
         We will modify the probation condition and affirm.




1
 .     All further statutory references are to the Penal Code except as otherwise
indicated.
                                              I
                                    Procedural History
       By information filed November 29, 2012, defendant Box was charged with a
violation of section 29800, subdivision (a)(1) (felon “who owns, purchases, receives, or
has in possession or under custody or control any firearm”) (count one) and section
30305, subdivision (a)(1) (“person prohibited from owning or possessing a firearm under
Chapter 2 (commencing with Section 29800)” who owns, possesses, or has under custody
or control, “any ammunition or reloaded ammunition”) (count two). The information
alleged a prior prison term. (§ 667.5, subd. (b).)
       Defendant filed his Hobbs Motion. Under the authority of Hobbs, supra, 7 Cal.4th
948, defendant asked the superior court to conduct an in camera review of the search
warrant affidavit to determine whether sufficient grounds existed to maintain the
confidentiality of the informer’s identity and whether the search warrant affidavit was
properly sealed in whole or part. Provided the affidavit was properly sealed, defendant
asked the court to also determine whether his “allegations of material misrepresentations
or omission” were supported by the public and sealed portions of the affidavit. The
search warrant and the return were filed as exhibits to defendant’s motion.
       The search warrant, endorsed for night service, authorized a search of residential
premises, defendant Box, and vehicles under defendant’s control for multiple items,
including, among other things, cocaine, evidence related to drug sales, and firearms and
ammunition. The magistrate sealed the supporting statement of probable cause,
designated “Hobbs Attachment A,” to protect an informant’s identity. The return
indicates that firearms and ammunition were seized under the search warrant.
       After an in camera hearing on April 10, 2013, the court directed the prosecutor to
provide defendant with a redacted version of the search warrant affidavit. Defendant’s
motion was heard on May 8, 2013. The court concluded that disclosure of the


                                             2
confidential informant was not required and the affidavit provided probable cause for
issuance of the warrant. The court denied the motion.
       On May 13, 2013, pursuant to a negotiated plea agreement, defendant pleaded no
contest to both counts and admitted the prior prison term allegation.
       On August 14, 2013, the court imposed the agreed-upon disposition. It granted
three years of formal probation with six months in county jail followed by six months in
an electronic monitoring program. The court imposed a number of probation conditions,
including the following. “You shall not own, knowingly possess, or have within your
custody or control any firearm or ammunition for the rest of your life pursuant to Section
29800 and 30305 of the Penal Code” and “[y]ou shall not possess any item that under the
law would be considered a deadly or dangerous weapon during your period of probation.”
The latter condition is now challenged on appeal.
                                              II
                                         Discussion
A. Hobbs Motion
       “When a defendant seeks to quash or traverse a warrant where a portion of the
supporting affidavit has been sealed, the relevant materials are to be made available for in
camera review by the trial court. (Hobbs, supra, 7 Cal.4th at p. 963; see Evid. Code,
§ 915, subd. (b).) The court should determine first whether there are sufficient grounds
for maintaining the confidentiality of the informant’s identity. If so, the court should then
determine whether the sealing of the affidavit (or any portion thereof) ‘is necessary to
avoid revealing the informant’s identity.’ (Hobbs, supra, 7 Cal.4th at p. 972.) Once the
affidavit is found to have been properly sealed, the court should proceed to determine
‘whether, under the “totality of the circumstances” presented in the search warrant
affidavit and the oral testimony, if any, presented to the magistrate, there was “a fair
probability” that contraband or evidence of a crime would be found in the place searched
pursuant to the warrant’ (if the defendant has moved to quash the warrant) or ‘whether
                                              3
the defendant’s general allegations of material misrepresentations or omissions are
supported by the public and sealed portions of the search warrant affidavit, including any
testimony offered at the in camera hearing’ (if the defendant has moved to traverse the
warrant). (Id. at pp. 975, 974.) The prosecutor may be present at the in camera hearing;
the defendant and defense counsel are to be excluded unless the prosecutor elects to
waive any objection to their presence.” (People v. Galland (2008) 45 Cal.4th 354, 364.)
       Hobbs protects the possibility of appellate review. “In all instances, a sealed
transcript of the in camera proceedings, and any other sealed or excised materials, should
be retained in the record along with the public portions of the search warrant application
for possible appellate review.” (Hobbs, supra, 7 Cal.4th at p. 975.)
       On appeal, defendant asks this court to “independently review the sealed, in
camera proceedings and the affidavit in support of the search warrant to determine
whether the trial court erred in sealing portions of the affidavit and in denying [his]
motion to traverse and quash the warrant.” The People agree that such review is
appropriate. Our review of the appellate record, including the transcript of the in camera
hearing and sealed documents, does not disclose error.
B. Weapons Condition
       Defendant argues that the condition prohibiting his possession of deadly or
dangerous weapons is unconstitutionally vague and overbroad in that it lacks an express
knowledge requirement.
1. Unconstitutional Vagueness
       Citing In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.) and People v. Freitas
(2009) 179 Cal.App.4th 747, 751-752 (Freitas), defendant argues that, absent an explicit
knowledge requirement, this weapons condition is unconstitutionally vague.
       “A probation condition ‘must be sufficiently precise for the probationer to know
what is required of him, and for the court to determine whether the condition has been
violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.]”
                                              4
(Sheena K., supra, 40 Cal.4th at p. 890.) “[T]he underpinning of a vagueness challenge
is the due process concept of ‘fair warning.’ (People v. Castenada (2000) 23 Cal.4th
743, 751 . . . .) The rule of fair warning consists of ‘the due process concepts of
preventing arbitrary law enforcement and providing adequate notice to potential
offenders’ (ibid.), protections that are ‘embodied in the due process clauses of the federal
and California Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7).’
(Ibid.)” (Ibid.)
       “The vagueness doctrine bars enforcement of ‘ “a statute which either forbids or
requires the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application.” [Citations.]’ [Citation.]
A vague law ‘not only fails to provide adequate notice to those who must observe its
strictures, but also “impermissibly delegates basic policy matters to policemen, judges,
and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application.” [Citation.]’ [Citation.] In deciding the
adequacy of any notice afforded those bound by a legal restriction, we are guided by the
principles that ‘abstract legal commands must be applied in a specific context,’ and that,
although not admitting of ‘mathematical certainty,’ the language used must have
‘ “reasonable specificity.” ’ [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890.)
       Potentially vague statutes may withstand constitutional challenges through
clarifying or narrowing judicial construction. (See Pryor v. Municipal Court (1979) 25
Cal.3d 238, 253; U.S. v. Lanier (1997) 520 U.S. 259, 266 [117 S.Ct. 1219]; Arave v.
Creech (1993) 507 U.S. 463, 471 [113 S.Ct. 1534].) “A statute that requires scienter
‘mitigate[s]’ the vagueness of its other terms by helping to ensure that the defendant had
adequate notice and by guarding against capricious enforcement through the requirement
that he actually have intended the conduct which the statute seeks to guard against.
[Citations.]” (Wright v. New Jersey (1985) 469 U.S. 1146, 1152, fn. 5 [105 S.Ct. 890].)


                                              5
       A trial court’s clarification of a potentially vague probation condition might also
prevent unconstitutional vagueness. (See Sheena K., supra, 40 Cal.4th at p. 891.) The
language of probation conditions, even concerning the same subject, varies enormously
from case to case and it does not always correspond to a statutory crime that has been
construed in a way that renders it constitutional.
       The probation condition at issue in Sheena K. prohibited Sheena from associating
“ ‘with anyone disapproved of by probation.’ ” (Sheena K., supra, 40 Cal.4th at p. 880.)
That “condition did not notify defendant in advance with whom she might not associate
through any reference to persons whom defendant knew to be disapproved of by her
probation officer.” (Id. at pp. 891-892.) The Supreme Court agreed that “modification to
impose an explicit knowledge requirement is necessary to render the condition
constitutional. (See, e.g., In re Justin S. (2001) 93 Cal.App.4th 811, 816 [probation
condition modified to forbid the minor’s association ‘ “with any person known to you to
be a gang member” ’]; People v. Lopez (1998) 66 Cal.App.4th 615, 624, fn. 5 [condition
of probation modified to prohibit defendant from associating ‘ “with any person known to
defendant to be a gang member” ’]; People v. Garcia (1993) 19 Cal.App.4th 97, 103 . . .
[condition of probation modified to provide that the defendant ‘is not to associate with
persons he knows to be users or sellers of narcotics, felons, or ex-felons’].)” (Id. at
p. 892.)
       Unlike Sheena K., defendant does not claim that the described category, “any item
that under the law would be considered a deadly or dangerous weapon,” is
unconstitutionally vague on its face. He does not complain that he does not know what
items he may not possess. In fact, his appellate brief sets forth the legal definition of
deadly or dangerous weapons. Instead, his concern is impliedly the one raised in Freitas.
       In Freitas, the probation condition prohibited the defendant, a felon, from owning,
possessing, or having custody or control of any firearms or ammunition. (Freitas, supra,
179 Cal.App.4th at pp. 750-751.) Defendant Freitas contended that “without the addition
                                              6
of a scienter requirement, he could be found in violation of probation if he merely
borrows a car and, unbeknownst to him, a vehicle owner’s lawfully obtained gun is in the
trunk.” (Id. at p. 752.) The People argued that an express knowledge requirement was
unnecessary because it was patent whether an object was a firearm or ammunition and
also because the condition’s language tracked (now former) section 12021. (Freitas,
supra, at pp. 751-752.)
       In Freitas, the Third District agreed that it was “unnecessary to specify that
defendant must know a gun is a gun.” (Freitas, supra, 179 Cal.App.4th at p. 752.) But it
nevertheless concluded that an express knowledge requirement was needed. After
considering the standard jury instruction applicable to former section 12021, the court
determined that “[a] requirement of knowledge should be read into the probation
condition for the same reason knowledge is required by CALCRIM No. 2510: the law
has no legitimate interest in punishing an innocent citizen who has no knowledge of the
presence of a firearm or ammunition.” (Freitas, supra, at p. 752.) The court also agreed
“with defendant that it is appropriate to modify the probation condition to specify that
defendant not knowingly possess the prohibited items. (Lopez, supra, 66 Cal.App.4th at
p. 630 [to avoid being void for vagueness, a probation condition must be sufficiently
precise for the probationer to know what is required of him or her].)” (Ibid.)
       We do not believe that the extent of a state’s “legitimate interest” in punishment, a
jurisprudential question, is relevant to the issue whether a probation condition is
unconstitutionally vague on its face. If a condition’s language provides adequate notice
of what is prohibited, our constitutional inquiry as to facial vagueness is at an end.
       In addition, unlike the condition in Freitas, the probation condition at issue here
does not correspond to a specific criminal law. Neither is the condition explicitly limited
to criminal law violations. Consequently, the probation condition does not impliedly
incorporate by reference a knowledge element from the criminal law, which may be made
express by modification of the condition. Since the probation condition does not clarify
                                              7
the state of mind required to commit a violation of the condition, it fails to provide
adequate notice of what is required to defendant, law enforcement, and the courts.
       Citing People v. Moore (2012) 211 Cal.App.4th 1179 (Moore), People v.
Rodriguez (2013) 222 Cal.App.4th 578 (Rodriguez), and People v. Kim (2011) 193
Cal.App.4th 836 (Kim), the People nonetheless insist that it is unnecessary to add an
express knowledge requirement because such a requirement is implicit. We disagree
with Moore and distinguish Rodriguez and Kim.
       In Moore, supra, 211 Cal.App.4th 1179, the appellate court stated: “When a
probationer lacks knowledge that he is in possession of a gun or weapon, his possession
cannot be considered a willful violation of a probation condition. (People v. Patel (2011)
196 Cal.App.4th 956, 960.)”2 (Id. at pp. 1186-1187, italics added.) We respectfully
disagree with Moore’s assessment that a knowledge requirement is “ ‘manifestly
implied’ ” in a probation condition prohibiting possession of weapons. (See id. at p.
1185.) To the extent other cases accept such reasoning, we disagree with them.
       A requirement of actual knowledge is not necessarily subsumed in any
requirement that a probation violation be willful. Various meanings are ascribed to the
word “willful” in the criminal law and ordinary language. (See § 7, subd. 1, Webster’s
3d Internat. Dict. (1993) p. 2617; see also, e.g., People v. Garcia (2001) 25 Cal.4th 744,

2
       In People v. Patel, supra, 196 Cal.App.4th 956, an authority cited by Moore, the
Court of Appeal, Third District, indicated it had wearied of continuing challenges to
probation conditions and declared: “We construe every probation condition proscribing a
probationer’s presence, possession, association, or similar action to require the action be
undertaken knowingly. It will no longer be necessary to seek a modification of a
probation order that fails to expressly include such a scienter requirement.” (Id. at
pp. 960-961.) A number of courts, including this court and Moore, declined to follow
Patel’s global pronouncement. (See People v. Pirali (2013) 217 Cal.App.4th 1341, 1351
[Sixth Dist.]; Moore, supra, 211 Cal.App.4th at p. 1188, fn. 7 [Second Dist., Div. 3];
People v. Moses (2011) 199 Cal.App.4th 374, 381 [Fourth Dist., Div. 3].) It is the
superior courts’ duty to impose constitutional probation conditions and it is the reviewing
courts’ responsibility to remedy constitutional defects properly raised on appeal. (See
Sheena K., supra, 40 Cal.4th at pp. 877-889.)
                                              8
752 [willful omission requires knowledge of legally required act]; People v. Simon
(1995) 9 Cal.4th 493, 522 [willful violation requires either knowledge or criminal
negligence in failing to acquire knowledge]; People v. Gonda (1982) 138 Cal.App.3d
774, 779 [willful violation does not require knowledge or any other criminal intent].)
Accordingly, any willfulness requirement generally applicable to probation conditions
does not automatically imply an actual knowledge element.
       The decisions of Rodriguez and Kim are distinguishable because the probation
conditions at issue in those cases referred to at least one specific Penal Code provision.
In Rodriguez, the weapons probation condition required the defendant to “ ‘[n]ot possess,
receive or transport any firearm, ammunition or any deadly or dangerous weapon [and]
[i]mmediately surrender any firearms or ammunition you own or possess to law
enforcement. (PC 12021)’ ”3 (Rodriguez, supra, 222 Cal.App.4th at pp. 589-590, italics
added.) This court reasoned in Rodriguez: “The weapon possession condition in this
case was obviously designed to reinforce general prohibitions against possessing a
variety of deadly weapons as well as specific restrictions on felons possessing firearms
and ammunition. It follows that the condition has the same implicit scienter requirements
as the statutes it implements. The mental element is constitutionally clear without being
explicit.” (Rodriguez, supra, at p. 592.)
       In Kim, supra, 193 Cal.App.4th 836, this court explained that “[i]n 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

3
       Former section 12021 made it a crime for certain persons to possess a firearm.
(See Stats. 2011, ch. 15, § 501.5, p. 508; see also Stats. 2008, ch. 599, § 4,
pp. 3423-3426.) At the time the condition in Rodriguez was imposed, former
section 12021 had been repealed. (Rodriguez, supra, 222 Cal.App.4th at p. 591.)
Provisions of former section 12021 were continued without substantive change in other
statutes. (See, e.g., §§ 29800, 29805, 29810, 29815, 29820, 29825; Cal. Law Revision
Com. com, 51D, Pt.4 West’s Ann. Pen. Code (2012 ed.) foll. §§ 29800, 29805, 29810,
29815, 29820, 29825, pp. 194, 237, 242-243, 245, 247.)
                                             9
knowledge of the prohibited conduct or circumstances.” (Id. at p. 843.) Nevertheless,
the court concluded that it was unnecessary to add an express knowledge requirement to
the probation condition being challenged in that case: “ ‘You shall not own, possess,
have within your custody or control any firearm or ammunition for the rest of your life
under Section[s] 12021 and 12316 [subdivision] (b)(1) of the Penal Code.’ ”4 (Id. at
p. 840.) The court stated: “[T]he conduct proscribed by sections 12021 and 12316 is
coextensive with that prohibited by a probation condition specifically implementing those
statutes. As the statutes include an implicit knowledge requirement, the probation
condition need not be modified to add an explicit knowledge requirement.” (Id. at
p. 847.)
       The People have not shown that the trial court intended to prohibit only criminal
possession of a deadly or dangerous weapon and, thereby, implicitly incorporated the
knowledge element of a specific crime. We emphasize that a probation condition may
regulate or prohibit otherwise lawful conduct (see People v. Olguin (2008) 45 Cal.4th
375, 379-380), in which case the mental states required by a criminal statute are not
impliedly incorporated into the condition.
       To prevent arbitrary enforcement and provide clear notice of what conduct will
constitute a violation, we will modify the deadly or dangerous weapon condition to add a
knowledge requirement so that it reads: “You shall not knowingly possess any item that
under the law would be considered a deadly or dangerous weapon during your period of
probation.”




4
        Former section 12316 made it a crime for certain persons to possess ammunition.
(Stats. 2009, ch. 628, § 5, pp. 3162-3163.) Those provisions were continued without
substantive change in another statute. (See § 30305; Cal. Law Revision Com. com, 51D,
Pt.4 West’s Ann. Pen. Code (2012 ed.) foll. § 30305, p. 284.)
                                             10
2. Overbreadth
      Defendant maintains that the deadly or dangerous weapon condition is “overbroad
in that without an express knowledge requirement, it prohibits innocent conduct.” Our
determination that the condition must be modified by adding a knowledge requirement to
avoid unconstitutional vagueness makes it is unnecessary to additionally decide the issue
of unconstitutional overbreadth.
                                     DISPOSITION
      The deadly or dangerous weapon condition is modified to provide: “You shall not
knowingly possess any item that under the law would be considered a deadly or
dangerous weapon during your period of probation.” As modified, the judgment is
affirmed.




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                                  _________________________________
                                  ELIA, J.


WE CONCUR:




_______________________________
RUSHING, P. J.




_______________________________
MÁRQUEZ, J.
