Filed 10/16/15 P. v. Rayford CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A141455
v.
JOEL NATHAN RAYFORD,                                                 (Contra Costa County
                                                                     Super. Ct. No. 51319532)
         Defendant and Appellant.


                                                             I.
                                                INTRODUCTION
         Appellant Joel Nathan Rayford appeals following his conviction for driving under
the influence (DUI) with three prior DUI convictions (Veh. Code, §§ 23152, subd. (b),
23550). He objects to two probation conditions prohibiting: (1) custody or control of
“any concealable weapon” (weapons condition) and (2) possession of “any dangerous
drugs” (drug condition). He contends that both conditions are unconstitutionally vague
because they lack a knowledge requirement, and they fail to define the operative terms.
The Attorney General concedes that the language of the conditions should be more
precise and that the drug condition, but not the weapons condition, should contain a
knowledge requirement. We order both the drug condition and the weapons condition to
be modified to be further defined and to include a knowledge element in each.
Otherwise, we affirm the judgment as modified.




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                                            II.
                 FACTUAL AND PROCEDURAL BACKGROUND
       The Contra Costa County District Attorney charged appellant with three offenses
resulting from his arrest on October 19, 2012: driving under the influence with three prior
convictions within the last ten years (Veh. Code, §§ 23152, subd. (a), 23550); driving
under the influence with a blood-alcohol content of 0.08 percent or more with three prior
DUI convictions (Veh. Code, §§ 23152, subd. (b), 23550); and driving while his license
was suspended for a previous DUI conviction (Veh. Code, § 14601.2, subd. (a)).
Appellant pled no contest to count two: driving with a blood-alcohol level of 0.08 percent
or higher with three prior convictions. He admitted that he had been convicted of driving
under the influence on three previous occasions, and that on the date of the current
offense his blood-alcohol level was over 0.15 percent.
       The court suspended imposition of sentence, and placed appellant on five years of
formal probation. The court ordered appellant to serve 365 days in county jail with credit
for 206 days, with the balance to be served on home detention. The court imposed the
following probation conditions, among others: (1) “You cannot have in your custody or
control any rifle, shotgun, firearm, any concealable weapon or any ammunition,” and
(2) “You cannot possess any dangerous drugs, narcotics, or narcotic paraphernalia.”1
                                            III.
                                      DISCUSSION
       Appellant’s claims that his probation conditions are unconstitutionally vague and
overbroad, and his objections to them now are not forfeited by his failure to raise them in
the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).)



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         The court’s written probation order contained slightly different wording than its
pronouncement at the hearing: (1) “Not own or possess or control any firearm or
weapon,” and (2) “Not use or possess any dangerous drugs, narcotics, marijuana, or
narcotic paraphernalia without a prescription.” The record of the court’s oral
pronouncement of the probation conditions controls over the clerk’s minute order.
(People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.)


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       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. . . .” (Sheena K.,
supra, 40 Cal.4th at p. 890, quoting People v. Reinertson (1986) 178 Cal.App.3d 320,
324–325.) The “underpinning of a vagueness challenge is the due process concept of
‘fair warning.’ [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890.) “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.)
       A. Weapons Condition
       Appellant raises two arguments with respect to the probation condition prohibiting
possession of weapons: first, it fails to give fair warning of what objects are prohibited,
and second, it lacks a knowledge requirement. Respondent agrees that the term
“concealable weapon” should be more precisely defined, but argues that a scienter
requirement is not necessary. We agree with the parties that the term “concealable
weapon” is vague and does not adequately define what constitutes a weapon. As
suggested, the probation condition should be modified to prohibit appellant’s custody or
control of concealable “dangerous or deadly” weapons to clarify the nature of the weapon
at issue. The phrase “deadly or dangerous weapon” refers to both “items specifically
designed as weapons, and other items not specifically designed as weapons that the
probationer intended to use to inflict, or threaten to inflict, great bodily injury or death.
[Citation.]” (People v. Moore (2012) 211 Cal.App.4th 1179, 1186; In re R.P. (2009) 176
Cal.App.4th 562, 568 [prohibiting the probationer from possession of a dangerous or
deadly weapon was sufficiently precise to know what is required of him].)
       In addition, we agree with appellant that the probation condition should be
modified to include a knowledge requirement. In so concluding, we acknowledge that
some courts have found an express knowledge requirement is unnecessary as it is implicit
in every probation condition because in order to find a violation, the probationer must
have willfully violated the probation condition. (People v. Moore, supra, 211


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Cal.App.4th at pp. 1186–1187 [if a probationer lacks knowledge that he is in possession
of weapon, his possession cannot be considered a willful probation violation]; People v.
Patel (2011) 196 Cal.App.4th 956, 960–961 [construing “every probation condition
proscribing a probationer’s presence, possession, association, or similar action to require
the action be undertaken knowingly”].)
          However, we believe the better view is that knowledge of the prohibited item or
conduct should not be left to implication. In In re Victor L. (2010) 182 Cal.App.4th 902
(Victor L.), another division of this court modified a probation condition to include an
express knowledge requirement. The probation condition required the minor “ ‘not
remain in any building, vehicle or in the presence of any person where dangerous or
deadly weapons or firearms or ammunition exist’ ” without limiting it to buildings or
vehicles that he “knows to contain, or people who[m] he knows to possess, such
weapons.” (Id. at p. 912, original italics.) The Victor L. court rejected the argument
adopted in People v. Moore that a knowledge requirement was not necessary because the
condition should be given a “commonsense reading” and the minor’s probation could not
be revoked without evidence of a willful violation. (Victor L., at p. 913.) The court went
on to hold that “[d]ue process requires more. It requires that the probationer be informed
in advance whether his conduct comports with or violates a condition of probation.”
(Ibid.)
          Similarly, in People v. Freitas the defendant objected to a probation condition
prohibiting possession of firearms or ammunition because it lacked a knowledge
requirement. (People v. Freitas, supra, 179 Cal.App.4th 747.) The Freitas court held
that the condition should be modified to specify that it applied to “knowing” possession
because “the law has no legitimate interest in punishing an innocent citizen who has no
knowledge of the presence of a firearm or ammunition.” (Id. at p. 752.)
          Therefore, we follow the approach in Victor L. and the Supreme Court’s approach
in Sheena K. that “modification to impose an explicit knowledge requirement is




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necessary to render the condition constitutional. [Citations.]” (Sheena K., supra, 40
Cal.4th at p. 892.)2
       B. Drug Condition
       Appellant also contends that the probation condition prohibiting him from
possessing “any dangerous drugs, narcotics or narcotic paraphernalia” is
unconstitutionally vague because he must guess which substances are prohibited, and this
condition also lacks a knowledge requirement. Respondent concedes that the condition
should be more specific and include a knowledge requirement.
       Appellant and respondent agree the condition should contain the following
modified language: “any controlled substances, or prescription drugs for which you do
not have a current or valid prescription, narcotics or narcotics paraphernalia.” We agree.
(See People v. Orozco (2012) 209 Cal.App.4th 726, 733 [California Uniform Controlled
Substances Act replaced the term “restricted dangerous drugs” with the more
comprehensive term, “controlled substances”].)
       Appellant and respondent also agree that the probation condition should include a
knowledge requirement. Adding the requirement of “knowing possession” addresses
concerns about accidental possession. As explained above, a knowledge requirement
also eliminates any potential vagueness. (See People v. Rodriguez (2013) 222
Cal.App.4th 578, 593-594 [modifying probation condition to not possess intoxicants,
narcotics, or other controlled substances without a prescription to add an express
knowledge requirement because the condition was not limited to substances regulated by
statute].)




       2
         A case currently before our Supreme Court presents the issue of whether a
probation condition prohibiting contact among minors must be modified to include a
knowledge requirement. (In re A.S., review granted Sept. 24, 2014, S220280.)


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                                           IV.
                                      DISPOSITION
       The weapons condition is ordered modified as follows: “You cannot knowingly
have in your custody or control any rifle, shotgun, firearm, any concealable dangerous or
deadly weapon, or any ammunition.” The drug condition is ordered modified as follows:
“You cannot knowingly possess any controlled substances, prescription drugs for which
you do not have a current or valid prescription, narcotics or narcotics paraphernalia.” As
modified, the judgment is affirmed.




                                                 _________________________
                                                 RUVOLO, P. J.


We concur:


_________________________
RIVERA, J.


_________________________
STREETER, J.




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