Filed 7/24/14 P. v. Bowman 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                          H040058
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS130952)

         v.

SCARLETT CHARMINE BOWMAN,

         Defendant and Appellant.




                                           I.        INTRODUCTION
         Defendant Scarlett Charmine Bowman appeals after pleading no contest to
transporting a controlled substance (Health & Saf. Code, § 11379, subd. (a)). She was
placed on Proposition 36 probation (Pen. Code, § 1210.1) for 18 months.
         On appeal, defendant challenges a probation condition that requires her not to use,
purchase, or possess alcoholic beverages and to stay out of places where alcohol is the
main item of sale. She also challenges a probation condition that requires her not to use
or possess narcotics, intoxicants, drugs, or other controlled substances without a
prescription. Defendant contends these probation conditions are vague and overbroad
because they do not include a knowledge element. We will modify the challenged
probation conditions and affirm the judgment as modified.
                                 II.      BACKGROUND
       On May 11, 2013, defendant was the passenger in a vehicle that was stopped by
police for parking violations. Defendant, who was on probation, had a bindle of
methamphetamine on her person.
       Defendant was charged with transporting a controlled substance (count 1; Health
& Saf. Code, § 11379, subd. (a)) and possession of a controlled substance (count 2;
Health & Saf. Code, § 11377, subd. (a)). On June 11, 2013, defendant pleaded no contest
to count 1 “for personal use.” On July 11, 2013, the trial court placed defendant on
Proposition 36 probation for 18 months.
       The trial court imposed a number of probation conditions, including the following:
       “Totally abstain from the use of alcoholic beverages, not purchase or possess
alcoholic beverages, and stay out of places when it is the main item of sale.”
       “Not use or possess alcohol/narcotics, intoxicants, drugs, or other controlled
substances without the prescription of a physician; not traffic in, or associate with persons
you know to use or traffic in narcotics or other controlled substances.”

                                   III.   DISCUSSION
       Defendant contends the probation conditions regarding alcohol and controlled
substances are unconstitutionally vague and overbroad because they do not include a
knowledge element.
       “A probation condition ‘must be sufficiently precise for the probationer to know
what is required of him [or her], 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.] A
probation condition that imposes limitations on a person’s constitutional rights must
closely tailor those limitations to the purpose of the condition to avoid being invalidated
as unconstitutionally overbroad. [Citation.]” (In re Sheena K. (2007) 40 Cal.4th 875,
890 (Sheena K.).)



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       In Sheena K., the California Supreme Court considered a probation condition
requiring the defendant not “ ‘associate with anyone disapproved of by probation.’ ”
(Sheena K., supra, 40 Cal.4th at p. 880.) The court held “that in the absence of an
express requirement of knowledge,” the probation condition was unconstitutionally vague
because it “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.)
       Appellate courts have held that a knowledge element was required in numerous
other probation conditions. For instance, in People v. Pirali (2013) 217 Cal.App.4th
1341 (Pirali), this court held that a knowledge element was required in a probation
condition that prohibited the defendant from having access to the Internet. (Id. at
p. 1350.) In People v. Moses (2011) 199 Cal.App.4th 374 (Moses), the court accepted the
Attorney General’s concession that a knowledge element should be added to probation
conditions barring the defendant from owning, using, or possessing any form of sexually
explicit material and from “frequent[ing] any establishment where such items are viewed
or sold.” (Id. at p. 377.) In In re Victor L. (2010) 182 Cal.App.4th 902, the court held
that a knowledge element was required in a probation condition prohibiting the defendant
from “ ‘remain[ing] in any building, vehicle or in the presence of any person where
dangerous or deadly weapons or firearms or ammunition exist.’ ” (Id. at p. 912.) And, in
People v. Freitas (2009) 179 Cal.App.4th 747, the court held that a knowledge element
was required in probation conditions regarding possession of firearms and stolen
property. (Id. at pp. 751-752; but see People v. Kim (2011) 193 Cal.App.4th 836, 847
[probation condition prohibiting possession of firearms and ammunition, which explicitly
referenced underlying statutes, did not need to include an explicit knowledge
requirement].)
       The Attorney General asserts that it is unnecessary to include a knowledge
requirement in the challenged probation conditions. The Attorney General cites to

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People v. Cervantes (2009) 175 Cal.App.4th 291 at page 295, where the court noted, “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.’ [Citation.]” The Attorney General invites this court to adopt the approach of
the Third District Court of Appeal in People v. Patel (2011) 196 Cal.App.4th 956 (Patel).
In Patel, the Third District considered whether a probation condition ordering that the
defendant not drink alcohol, possess it, or be in a place where it was the chief item of sale
was invalid because it lacked a knowledge requirement. (Id. at p. 959.) The court
expressed its frustration with the “dismaying regularity” with which “we still must revisit
the issue in orders of probation” that do not include a qualification that the defendant
must commit the proscribed conduct knowingly. (Id. at p. 960.) Noting that “there is
now a substantial uncontradicted body of case law establishing, as a matter of law, that a
probationer cannot be punished for presence, possession, association, or other actions
absent proof of scienter” (ibid.), the Patel court announced that it would “no longer
entertain this issue on appeal” (ibid.) and, moving forward, it would “construe every
probation condition proscribing a probationer’s presence, possession, association, or
similar action to require the action be undertaken knowingly” (ibid.), without modifying a
probation order that “fails to expressly include such a scienter requirement” (id. at
pp. 960-961). The Attorney General acknowledges that a number of Courts of Appeal—
including this court—have declined to adopt the Patel approach. (See Pirali, supra, 217
Cal.App.4th at p. 1351 [“Until our Supreme Court rules differently, we will follow its
lead on this point.”]; People v. Moore (2012) 211 Cal.App.4th 1179, 1188, fn. 7; Moses,
supra, 199 Cal.App.4th at p. 381.)
       We agree with defendant that a knowledge element should be added to the first
challenged probation condition, which states: “Totally abstain from the use of alcoholic
beverages, not purchase or possess alcoholic beverages, and stay out of places when it is
the main item of sale.” The conduct affected by this condition is “not in itself criminal,”

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and the condition does not “arise from or purport to implement any statutory prohibition.”
(People v. Rodriguez (2013) 222 Cal.App.4th 578, 592 (Rodriguez).) We will modify the
condition to read as follows: “Totally abstain from the use of beverages you know or
reasonably should know to be alcoholic; do not purchase or possess any beverage you
know or reasonably should know to be alcoholic; stay out of places where you know or
reasonably should know that alcohol is the main item of sale.”
       We also agree with defendant that a knowledge element should be added to the
second challenged probation condition, which states: “Not use or possess
alcohol/narcotics, intoxicants, drugs, or other controlled substances without the
prescription of a physician; not traffic in, or associate with persons you know to use or
traffic in narcotics or other controlled substances.” Our conclusion comports with
Rodriguez, supra, 222 Cal.App.4th 578, in which this court addressed a nearly identical
condition. While this court found that a scienter element was “reasonably implicit in the
condition” to the extent it reinforced the defendant’s obligations under California’s
Uniform Controlled Substances Act, we determined that a knowledge element was
required because the condition was “not limited to substances regulated by statute.” (Id.
at pp. 593, 594.) In fact, the Attorney General agrees that “standing alone, the term
intoxicants is unclear,” and the Attorney General does not object to inclusion of a
knowledge element as to that term. The Attorney General also suggests that we modify
this probation condition to delete the reference to alcohol, “since the use or possession of
alcoholic beverages is already covered” by the other probation condition. Thus, we will
modify the condition to read as follows: “Not knowingly use or possess narcotics,
intoxicants, drugs, or other controlled substances without the prescription of a physician;
not traffic in, or associate with persons you know to use or traffic in narcotics or other
controlled substances.”




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                                  IV.     DISPOSITION
       The judgment is modified as follows:
       The probation condition reading “Totally abstain from the use of alcoholic
beverages, not purchase or possess alcoholic beverages, and stay out of places when it is
the main item of sale” is modified to read as follows: “Totally abstain from the use of
beverages you know or reasonably should know to be alcoholic; do not purchase or
possess any beverage you know or reasonably should know to be alcoholic; stay out of
places where you know or reasonably should know that alcohol is the main item of sale.”
       The probation condition reading “Not use or possess alcohol/narcotics,
intoxicants, drugs, or other controlled substances without the prescription of a physician;
not traffic in, or associate with persons you know to use or traffic in narcotics or other
controlled substances” is modified to read as follows: “Not knowingly use or possess
narcotics, intoxicants, drugs, or other controlled substances




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without the prescription of a physician; not traffic in, or associate with persons you know
to use or traffic in narcotics or other controlled substances.”
       As so modified the judgment (order of probation) is affirmed.




                                    ___________________________________________
                                    BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MÁRQUEZ, J.




__________________________
GROVER, J.




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