Filed 8/29/13 P. v. Welbers 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038791
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. Nos. SS120998 &
                                                                     SS120367)
             v.

ALEXANDER WELBERS,

         Defendant and Appellant.



         Defendant Alexander Welbers appeals from a grand theft conviction. On appeal,
defendant contends that the trial court erred in imposing two probation conditions that are
vague and overbroad. As set forth below, we will modify the probation conditions and
affirm the judgment as modified.
                                  FACTUAL AND PROCEDURAL HISTORY
         Defendant stole two truck rims. The victim reported that the rims were worth
$500 each.
         A felony complaint charged defendant with grand theft (Pen. Code, § 487,
subd. (a).) Defendant pleaded no contest to the charge.1



         1
          Defendant was on Proposition 36 probation at the time he committed the grand
theft. In pleading no contest to the charge of grand theft, defendant admitted that he was
in violation of the terms of his probation.
       The trial court suspended imposition of sentence, and it placed defendant on
formal probation for three years with various terms and conditions. One of the probation
conditions states that defendant may “[n]ot possess, receive or transport any firearm,
ammunition or any deadly or dangerous weapon.” Another probation condition specifies
that defendant may “not possess tools used for the express purpose of facilitating a
burglary or theft; such as pry bars, screwdrivers, pick lock devices, universal keys or
implements, or other such devices without the express permission of [his] supervising
Probation Officer.”
       Defendant filed a timely notice of appeal. This appeal followed.
                                       DISCUSSION
       Defendant argues that the weapons condition and the burglary-tools condition are
unconstitutionally vague and overbroad because they do not include knowledge
requirements. Defendant accordingly requests that we modify each condition to impose a
knowledge requirement. The People contend that we should decline to modify the
conditions and simply construe the conditions to include knowledge requirements, as the
Third Appellate District did in People v. Patel (2011) 196 Cal.App.4th 956 (Patel). The
People concede that, if we do not follow the Patel approach, express knowledge
requirements should be added to the conditions. As explained below, we will modify
each condition to impose a knowledge requirement.
       “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.] 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.) To pass constitutional muster, a probation condition that prohibits possession of

                                             2
particular items must “specify that defendant not knowingly possess the prohibited
items.” (People v. Freitas (2009) 179 Cal.App.4th 747, 752, italics in original.)
       In Patel, the Third Appellate District expressed frustration with the “dismaying
regularity” with which appellate courts must consider challenges to probation conditions
lacking express knowledge requirements. (Patel, supra, 196 Cal.App.4th 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,” the Patel court announced that it would “no
longer entertain this issue on appeal.” (Ibid.) The Patel court held: “We construe every
probation condition proscribing a probationer’s presence, possession, association, or
similar action to require the action be undertaken knowingly. It will no longer be
necessary to seek a modification of a probation order that fails to expressly include such a
scienter requirement.” (Id. at pp. 960-961, fn. omitted.)
       A number of the courts of appeal have declined to adopt the approach articulated
in Patel, and these courts instead modify probation conditions to impose express
knowledge requirements. (E.g., People v. Moses (2011) 199 Cal.App.4th 374, 381; In re
Victor L. (2010) 182 Cal.App.4th 902, 912-913; People v. Garcia (1993) 19 Cal.App.4th
97, 102-103.) We join these courts and decline to follow the Patel approach. When our
Supreme Court faced the issue of the lack of a knowledge requirement in a probation
condition, the remedy it mandated was unequivocal: “[W]e agree with the Court of
Appeal that modification to impose an explicit knowledge requirement is necessary to
render the condition constitutional.” (In re Sheena K., supra, 40 Cal.4th at p. 892.) Thus,
until our Supreme Court rules differently, we will follow its lead on this point. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
       Accordingly, we will modify each of the challenged probation conditions to
include a knowledge requirement. We modify the weapons condition to prohibit

                                             3
defendant from knowingly possessing, receiving, or transporting any firearm,
ammunition, or deadly or dangerous weapon. We modify the burglary-tools condition to
prohibit defendant from knowingly possessing tools used for the express purpose of
facilitating a burglary or theft.
       Defendant additionally asserts that the term “deadly or dangerous weapon,” as
used in the weapons condition, is unconstitutionally vague because it “lacks any
definition.” He consequently requests that we remove that term from the weapons
condition. Contrary to defendant’s assertion, the term “deadly or dangerous weapon” has
a “clearly established meaning.” (People v. Moore (2012) 211 Cal.App.4th 1179, 1186.)
The term includes “items specifically designed as weapons, and other items not
specifically designed as weapons that the probationer intend[s] to use to inflict, or
threaten to inflict, great bodily injury or death.” (Ibid.) The term “deadly or dangerous
weapon” therefore is “not unconstitutionally vague when used in a probation condition.”
(Ibid.) Thus, we need not remove the term “deadly or dangerous weapon” from the
weapons condition.
       Defendant finally asserts that the burglary-tools condition is overbroad because the
prohibited tools listed in the condition have non-criminal purposes. He therefore requests
that we remove the list of tools from the condition. We conclude that the inclusion of the
list of tools does not render the condition overbroad. The burglary-tools condition
specifies that defendant may not possess the listed tools “for the express purpose of
facilitating a burglary or theft.” The foregoing language prohibits possession of the listed
tools only if the possession is accompanied by the intent to commit burglary or theft.
Because the condition permits possession of the listed tools if the possession is
unaccompanied by any such criminal intent, the condition is not overbroad. We
accordingly need not remove the list of tools from the condition. (See generally In re
R.P. (2009) 176 Cal.App.4th 562, 570 [probation condition prohibiting weapon

                                              4
possession applies to an item not specifically designed as a weapon only if the
probationer intends to use the item as a weapon].)
                                       DISPOSITION
       The weapons condition is modified to state: “Do not knowingly possess, receive,
or transport any firearm, ammunition, or any deadly or dangerous weapon.” The
burglary-tools condition is modified to state: “Do not knowingly possess tools used for
the express purpose of facilitating a burglary or theft, such as pry bars, screwdrivers,
pick-lock devices, universal keys or implements, or other such devices, without the
express permission of the supervising probation officer.” As so modified, the judgment
is affirmed.


                                           ______________________________________
                                                      RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.



                                              5
