Filed 10/29/13 P. v. Dang CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038688
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1112313)

             v.

TONY DANG,

         Defendant and Appellant.



         Defendant Tony Dang was convicted by plea of possessing controlled substances.
His sole contention on appeal is that probation conditions prohibiting him from
possessing or consuming alcohol or controlled substances are vague and overbroad. As
in other cases we will modify the challenged conditions to include an express
requirement of guilty knowledge.
                                                   BACKGROUND
         Defendant was charged with possession of methamphetamine for sale (Health &
Saf. Code, § 11378) and possession of less than an ounce of marijuana (Health & Saf.
Code, § 11357, subd. (b)). The charges were based on evidence seized after a traffic
stop. His motion to suppress the evidence was denied. Defendant then entered a plea of
no contest in light of an indicated sentence of 165 days in county jail, with eligibility for
all programs. The probation department recommended a number of probation conditions,
including those challenged here.1 The court imposed the indicated sentence, placing
defendant on probation with 165 days in county jail on conditions including those at
issue.2 Defendant filed this timely appeal.
                                       DISCUSSION
       Defendant contends that the challenged conditions are unconstitutionally vague
and overbroad in the absence of language clarifying that he cannot be found in violation
of them unless he knew of the circumstances bringing his conduct within the prohibition.
Respondent acknowledges that defendant cannot be found in violation of the conditions
unless he violates them willfully, but disputes the necessity to include an express
requirement of guilty knowledge.
       This and other courts have frequently modified probation conditions to include an
express scienter element in order to give clear notice to both the defendant and probation
authorities of what will constitute a violation. (E.g., In re Sheena K. (2007) 40 Cal.4th
875, 892; People v. Pirali (2013) 217 Cal.App.4th 1341, 1350-1353; People v. Barajas
(2011) 198 Cal.App.4th 748, 761, fn. 10; People v. Leon (2010) 181 Cal.App.4th 943,
950, 951; In re H.C. (2009) 175 Cal.App.4th 1067, 1070-1073; People v. Freitas (2009)
179 Cal.App.4th 747, 750-751, 753; cf. In re E. O. (2010) 188 Cal.App.4th 1149, 1157



       1
          As recommended in the waived referral report, the challenged conditions were
stated as follows: “7. The defendant shall not possess or consume alcohol or illegal
substances or knowingly go to places where alcohol is the primary item of sale.
[¶] 8. The defendant is not to possess or use illegal drugs or illegal controlled substances
or go anywhere he/she knows illegal drugs or non prescribed controlled substances are
used or sold.”
       2
          As orally pronounced: “You’re ordered not to possess or consume alcohol or
illegal substances, or knowingly go to places where alcohol is a primary item of sale.
[¶] You’re ordered not to possess or use illegal drugs or illegal controlled substances or
go anywhere you know illegal drugs or non-prescribed controlled substances are used or
sold.”

                                              2
[overbroad restriction on court attendance stricken where record failed to disclose
purpose to which it might be tailored].)
         Such a modification obviates constitutional concerns under the vagueness and
overbreadth doctrines. It imposes no noticeable burden on the trial or appellate courts. It
serves “[t]he aim and purpose of the law” in this context, which is “to meet the core due
process requirement of adequate notice.” (In re H.C., supra, 175 Cal.App.4th at pp 1071-
1072.)
         Accordingly, we will adhere to our consistent practice and modify the challenged
conditions as requested.
                                        DISPOSITION
         The challenged conditions are modified to provide as set forth in the margin.3 As
so modified, the judgment is affirmed.




                                           ______________________________________
                                                      RUSHING, P.J.


WE CONCUR:


____________________________________
           PREMO, J.


____________________________________
           ELIA, J.

         3
         “You are ordered not to knowingly possess or consume alcohol or illegal
substances, or knowingly go to places where alcohol is a primary item of sale. [¶] You
are ordered not to knowingly possess or use illegal drugs or illegal controlled substances
or knowingly go anywhere illegal drugs or non-prescribed controlled substances are
being used or sold.”

                                              3
