Filed 11/13/13 P. v. Ramirez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038660
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS120394)

         v.

ADRIAN SOLORIO RAMIREZ,

         Defendant and Appellant.



         Defendant Adrian Solorio Ramirez pleaded guilty to possession of a controlled
substance (Health & Saf. Code, § 11350, subd. (a)) and no contest to misdemeanor
possession of a billy club (Pen. Code, § 22210).1 The trial court suspended imposition of
sentence and placed him on felony probation for three years. On appeal, defendant
challenges two probation conditions as unconstitutionally vague and overbroad. We
modify and affirm the trial court’s order.


                                                   I. Background
         On March 2, 2012, Salinas police officers responded to reports of a stabbing in
Closter Park and detained defendant and others near the metal bleachers. Asked if he
possessed any weapons, defendant replied that he did not. Asked about a 14-inch billy

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         Subsequent statutory references are to the Penal Code unless otherwise noted.
club found where he had been sitting, defendant said he found the “bat” that morning and
did not know it was considered a weapon. He consented to a search of his person, and
officers found a hypodermic syringe in his pants pocket. He initially denied possessing
heroin, but when a further search located a small tin “cooker” containing heroin and a
rubber tie-off strap in his pocket, he admitted buying “a dime” of the drug that morning
and using a small amount.


                                       II. Discussion
                             A. No-Alcohol/Drugs Condition
       Condition No. 8 requires defendant to “[n]ot use or possess alcohol, narcotics,
intoxicants, drugs, or other controlled substances without the prescription of a physician;
not traffic in or associate with persons known to [defendant] to use or traffic in narcotics
or other controlled substances.” Defendant argues that the condition is unconstitutionally
vague and overbroad because it lacks a knowledge requirement, leaving him “vulnerable
to criminal punishment for conduct that may be wholly unwitting and involuntary.” The
Attorney General responds that the condition contains an implied knowledge
requirement. To the extent this court finds the condition vague, however, she agrees that
it can be modified to add an express knowledge requirement. We conclude that the
condition must be modified.
       A trial court has broad discretion to impose such reasonable probation conditions
“as it may determine are fitting and proper to the end that justice may be done . . . and
generally and specifically for the reformation and rehabilitation of the probationer . . . .”
(§ 1203.1, subd. (j).) “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.]” (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) “[T]he
underpinning of a vagueness challenge is the due process concept of ‘fair warning.’
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[Citation.] The rule of fair warning consists of ‘the due process concepts of preventing
arbitrary law enforcement and providing adequate notice to potential offenders’
[citation], protections that are ‘embodied in the due process clauses of the federal and
California Constitutions. [Citation.]’ [Citation.]” (Ibid.) “A probation condition which
either forbids or requires the doing of an act in terms so vague that persons of common
intelligence must necessarily guess at its meaning and differ as to its application, violates
due process.” (People v. Freitas (2009) 179 Cal.App.4th 747, 750.) Probation
conditions need not be stated so exactingly as to preclude any possibility of
misinterpretation or misapplication, however; the law requires “ ‘ “ ‘reasonable
specificity,’ ” ’ ” not “ ‘ “mathematical certainty.” ’ ” (People v. Barajas (2011) 198
Cal.App.4th 748, 762.)
       Defendant argues that the no-alcohol/drugs condition does not provide the fair
warning that due process requires because “intoxicants” is a term not easily amenable to
precise definition. We agree. An “intoxicant” is “something that intoxicates; esp.: an
alcoholic drink.” (Merriam-Webster’s Collegiate Dict. (10th ed. 1999) p. 614
(Webster’s).) “Intoxicate” means “to excite or elate to the point of enthusiasm or
frenzy,” and “intoxicated” means “affected by or as if by alcohol.” (Webster’s, at p. 614,
italics added.) Under these commonly understood definitions, ordinary items like paint,
glue, and permanent markers qualify as intoxicants. (See People v. Roybal (1998) 19
Cal.4th 481, 499 [“It was the same kind of paint defendant would ordinarily ‘sniff’ in
order to become ‘high.’ ”].) Without an express knowledge requirement, the no-
alcohol/drugs condition puts defendant at risk of an unwitting probation violation if
someone in his household has such items there. We note that defendant could also
unwittingly violate this condition in other ways—by drinking alcoholic punch at a party
after being assured that it contained no alcohol, for example, or by wearing a borrowed
jacket or driving a borrowed car in which someone had left a controlled substance. We


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conclude that the condition must be modified to include an express knowledge
requirement.
       The Attorney General argues that a knowledge requirement is implicit in the
condition. She provides no authority or reasoning to support the assertion, and we reject
it.
       As this court explained in People v. Kim (2011) 193 Cal.App.4th 836 (Kim), since
at least 1993 and “[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 knowledge of the prohibited conduct or circumstances.”
(Kim, at p. 843.) The court acknowledged that in many if not most cases, an express
knowledge requirement is both “reasonable and necessary.” (Kim, at p. 845.) However,
the court pointed out, “[t]he function served by an express knowledge requirement should
not be extended beyond its logical limits.” (Kim, at p. 847.)
       In Kim, the court held that a probation condition requiring the defendant not to
“ ‘own, possess, [or] have within [his] custody or control any firearm or ammunition for
the rest of [his] life under Section[s] 12021 and 12316[, subdivision] (b)(1)’ ” contained
an implicit knowledge requirement and thus satisfied the due process concept of fair
warning. (Kim, supra, 193 Cal.App.4th at pp. 840-841.) Noting that section 12021 and
related firearm possession statutes had been construed to include an implicit mental state,
the Kim court saw “no reason to give a probation condition implementing section 12021 a
different interpretation than the underlying statute has already received.” (Kim, at
p. 847.) “[W]here a probation condition implements statutory provisions that apply to the
probationer independent of the condition and does not infringe on a constitutional right, it
is not necessary to include in the condition an express scienter requirement that is
necessarily implied in the statute.” (Kim, at p. 843.)
       This is not a case like Kim. The no-alcohol/drugs condition challenged here,
unlike the no-firearms condition challenged in Kim, does not reference, parallel, or
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obviously implement a statute that contains an implicit knowledge requirement. Indeed,
the condition challenged here, unlike the one challenged in Kim, forbids some conduct
that is not proscribed by statute at all. Adding an express knowledge requirement in these
circumstances will not extend the function of such a requirement beyond its logical
limits. (Kim, supra, 193 Cal.App.4th at p. 847.)


                              B. No-New-Tattoos Condition
       Condition No. 19 requires that defendant “[n]ot obtain any new gang related
tattooing upon your person while on probation supervision. You’re to permit
photographing of any tattoos on your person by law enforcement.” Defendant argues that
the condition is unconstitutionally vague and overbroad without an express knowledge
requirement. The Attorney General asserts that the condition contains an implied
knowledge requirement. We conclude that the condition must be modified.
       As various courts, including ours, have recognized, “gang tattoos may employ
obscure symbols not readily recognized or catalogued as gang tattoos.” (In re Victor L.
(2010) 182 Cal.App.4th 902, 930.) “[I]t takes some experience or training to identify
what colors, symbols, hand signs, slogans, and clothing are emblematic of various
criminal street gangs.” (Kim, supra, 193 Cal.App.4th at p. 845.) Without a knowledge
requirement, the no-new-tattoos condition puts defendant at risk of unwittingly violating
his probation by obtaining a tattoo that he believes, or that a friend assures him, is
innocuous.
       An express knowledge requirement must be added because Kim’s reasoning does
not apply here. The condition challenged here, unlike the one challenged in Kim, does
not reference, parallel, or obviously implement a statute containing an implicit
knowledge requirement. The no-new-tattoos condition, unlike the no-firearms condition
challenged in Kim, forbids conduct that, for adults, is not proscribed by statute at all.
Adding an express knowledge requirement in these circumstances will not extend the
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function of such a requirement beyond its logical limits. (Kim, supra, 193 Cal.App.4th at
p. 847.)


                                       III. Disposition
       The July 5, 2012 order is modified as follows:
       Condition No. 8 is modified to state that defendant shall “[n]ot knowingly use or
possess alcohol/narcotics, intoxicants, drugs, or other controlled substances without the
prescription of a physician . . . .”
       Condition No. 19 is modified to state that defendant shall “not obtain any new
tattooing upon your person that you know is gang-related while on probation
supervision. . . .”
       As modified, the order is affirmed.




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                                         ___________________________
                                         Mihara, J.



I CONCUR:




_____________________________
Premo, Acting P. J.

Grover, J., Concurring and Dissenting
      I concur in affirming the judgment and in modifying the tattoo-related probation
condition (No. 19). However, I respectfully dissent from modifying the
alcohol/drugs/intoxicants condition (No. 8) because I believe the majority applies the
reasoning of In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.) too broadly.
      Sheena K. did not concern the possession or consumption of a proscribed item. At
issue in Sheena K. was a probation condition prohibiting conduct completely within the
probation officer’s subjective discretion, namely, not associating with “anyone
disapproved of by probation.” (Sheena, supra, at p. 878.) A knowledge requirement is
needed in such a probation condition to ensure reasonable notice of which persons are to
be avoided. Indeed, most probation conditions restricting association depend on avoiding
a type of person based on some characteristic that may or may not be outwardly apparent.
The trial court here included just such a knowledge provision in Condition No. 8 by



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proscribing “traffic[king] in or associat[ing] with persons known to [defendant] to use or
traffic in narcotics or other controlled substances.” (Italics added.)
       In People v. Garcia (1993) 19 Cal.App.4th 97 (Garcia), which was cited with
approval in Sheena K., a condition barring association with “ ‘any felons, ex-felons, users
or sellers of narcotics’ ” (id. at p. 100) was found to be an unconstitutionally overbroad
infringement on freedom of association absent an explicit knowledge requirement. (Id.
at p. 102.) In rejecting the Attorney General’s invitation to construe the challenged
condition as containing an implicit scienter requirement, the Garcia court noted “the rule
that probation conditions that implicate constitutional rights must be narrowly drawn, and
the importance of constitutional rights, lead us to the conclusion that this factor should
not be left to implication.” (Ibid.) I do not believe that the reasoning of Garcia and
Sheena K. regarding conditions prohibiting association stand for the proposition that
scienter must be explicit in probation conditions generally when no similar constitutional
right is at stake; certainly statutes are not held to such a standard.
       It is well established that an individual will not be subject to criminal sanctions
without proof of a mental state corresponding to the prohibited conduct. As the
California Supreme Court has explained, “the requirement that, for a criminal conviction,
the prosecution prove some form of guilty intent, knowledge, or criminal negligence is of
such long standing and so fundamental to our criminal law that penal statutes will often
be construed to contain such an element despite their failure expressly to state it.
‘Generally, “ ‘[t]he existence of a mens rea is the rule of, rather than the exception to, the
principles of Anglo-American criminal jurisprudence.’ . . .” [Citation.] In other words,
there must be a union of act and wrongful intent, or criminal negligence. (Pen. Code
§ 20; [citation].)’ ” (In re Jorge M. (2000) 23 Cal.4th 866, 872, quoting People v. Coria
(1999) 21 Cal.4th 868, 876.)
       It is similarly established that a probation violation must be willful to justify
revocation of probation. As explained in People v. Cervantes (2009)
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175 Cal.App.4th 291, 295 (Cervantes), in which a probationer failed to appear for a
review hearing due to being in the custody of immigration officials: “A court may not
revoke probation unless the evidence supports ‘a conclusion [that] the probationer’s
conduct constituted a willful violation of the terms and conditions of probation.’ [Quoting
People v. Galvan (2007) 155 Cal.App.4th 978.]” Noncompliance is not willful when it is
attributable to circumstances beyond a probationer’s awareness or control (Cervantes,
supra, at p. 295), just as nonpayment is not willful unless a probationer has the ability to
pay. (People v. Quiroz (2011) 199 Cal.App.4th 1123, 1129; Pen. Code, § 1203.2,
subd. (a).) Under these standards, the majority’s concerns about unwitting probation
violations, although well-intentioned, are unfounded.
       Because any violation of Condition No. 8 must be proven to be willful, I believe it
is reasonable to interpret its prohibition on using or possessing referenced substances as
containing an implicit scienter element, just as statutes concerning controlled substances
have been interpreted. “[A]lthough criminal statutes prohibiting the possession,
transportation, or sale of a controlled substance do not expressly contain an element that
the accused be aware of the character of the controlled substance at issue ([Health & Saf.
Code,] §§ 11350-11352, 11357-11360, 11377-11379), such a requirement has been
implied by the courts.” (People v. Coria, supra, 21 Cal.4th 868, 878.) For these reasons
I would affirm Condition No. 8 without modification.




                                           ______________________________________
                                           Grover, J.




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