Filed 9/30/16 P. v. Conatser CA1/3
                         NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 THREE


THE PEOPLE,
          Plaintiff and Respondent,
                                                                                A146093
v.
CHRISTOPHER HAYES CONATSER,                                                     (Napa County
                                                                                Super. Ct. No. CR167593)
          Defendant and Appellant.


          Defendant Christopher Hayes Conatser appeals from a judgment sentencing him to
two years in local custody followed by six years mandatory supervision based on his no
contest plea to possession of methamphetamine for sale (Health & Saf. Code, § 11378)
with two prior drug convictions. On appeal, defendant contends that two of the conditions
of his mandatory supervision are unconstitutionally vague and must be modified to
prohibit him from knowingly violating them. The underlying issue is currently pending
before our Supreme Court in People v. Hall (2015) 236 Cal.App.4th 1124, review
granted September 9, 2015, S227193.1 Therefore, although we question the need to do so,

1
 The summary of the issues under review in the Supreme Court in People v. Hall, supra,
236 Cal.App.4th 1124 states: “This case presents the following issues: (1) Are probation
conditions prohibiting defendant from: (a) ‘owning, possessing or having in his custody
or control any handgun, rifle, shotgun or any firearm whatsoever or any weapon that can
be concealed on his person’; and (b) ‘using or possessing or having in his custody or
control any illegal drugs, narcotics, narcotics paraphernalia without a prescription,’
unconstitutionally vague? (2) Is an explicit knowledge requirement constitutionally
mandated?” (See also People v. Gaines (2015) 242 Cal.App.4th 1035, review granted
Feb. 17, 2016, S231723.)


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we shall, in the interest of avoiding the prolongation of these proceedings, modify the
challenged conditions to include an express knowledge requirement, and affirm the
judgment in all other respects.
                                        Discussion
       Defendant challenges as unconstitutionally vague the following conditions of his
mandatory supervision: “10. Do not use, consume or possess any non-prescribed or
illegal substances, including medical marijuana, unless specifically authorized by the
court. Provide the probation officer with verification of any prescribed controlled
substance within 72 hours of it being prescribed. [¶] . . . [¶] 15. Do not own or possess
any firearm, ammunition, or other dangerous or deadly weapon.”
       “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair
warning.’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) To survive a challenge for
vagueness, “[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.’ ” (Ibid.) A probation condition passes constitutional muster so long as it
spells out with “reasonable specificity” what is prohibited in such a way that persons of
common intelligence need not guess at its meaning or differ as to its application. (Ibid.)
       Initially, defendant argues that the “use of the word ‘non-prescribed’ in the
substances condition renders it hopelessly vague, because it suggests that Conatser is
prohibited from using or possessing any over-the-counter medication, such as aspirin, or
something to ease heartburn.” The Attorney General explains correctly, however, that the
word “non-prescribed” encompasses only prescription medications for which defendant
does not have a valid prescription. Read in context, a reasonable probationer with
common intelligence is not likely to interpret the probation condition as prohibiting his
use of over-the-counter medication.
       Defendant’s primary contention is that the challenged conditions must include an
explicit knowledge requirement to avoid the possibility of an unwitting violation of the
conditions. The Attorney General recognizes that defendant can violate the conditions of
his supervision only if he does so willfully and suggests that the implicit willfulness


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requirement for a violation of mandatory supervision conditions is sufficient. We
recognize, as do the parties, a split in authority as to whether the scienter requirement
must be expressly included in a probation condition. (See In re Kevin F. (2015) 239
Cal.App.4th 351, 365 [requiring modification to add a scienter requirement]; People v.
Freitas (2009) 179 Cal.App.4th 747, 752 [same]; People v. Moore (2012) 211
Cal.App.4th 1179, 1185 [modification to add scienter requirement is unnecessary because
a knowledge requirement is already “manifestly implied.”]; People v. Rodriguez (2013)
222 Cal.App.4th 578, 591 [Challenged probation condition contains implicit scienter
requirements, and due process does not require making them explicit.]; People v. Kim
(2011) 193 Cal.App.4th 836, 847 [“[I]t is not necessary to include in the condition an
express scienter requirement that is necessarily implied in the statute.”].) Although the
Attorney General’s position has much to commend it, until the Supreme Court provides
further guidance we see no reason to prolong these proceedings and consider it most
expedient to simply require that the term “knowingly” be inserted in the challenged
conditions.
                                        Disposition
       The matter is remanded to the trial court with the direction to modify condition
numbers 10 and 15 to read as follows: “10. Do not knowingly use, consume or possess
any non-prescribed or illegal substances, including medical marijuana, unless specifically
authorized by the court. Provide the probation officer with verification of any prescribed
controlled substance within 72 hours of it being prescribed. [¶] . . . [¶] 15. Do not
knowingly own or possess any firearm, ammunition, or other dangerous or deadly
weapon.”
       The judgment is affirmed in all other respects.




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                                _________________________
                                Pollak, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Jenkins, J.




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