Filed 11/18/14 P. v. Michael 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          H040546
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1350557)

             v.

DANIEL EMBAYE MICHAEL,

         Defendant and Appellant.



                                                   INTRODUCTION
         Defendant Daniel Embaye Michael contends that a mandatory supervised release
condition prohibiting him from possessing or using illegal drugs or illegal controlled
substances is vague and overbroad. He urges this court to modify the condition to
include a knowledge requirement. We will modify the challenged conditions to include
an express knowledge requirement.
                              FACTUAL AND PROCEDURAL BACKGROUND
         On February 15, 2013, the district attorney filed a complaint charging defendant
with possession for sale of marijuana. (Health & Saf. Code, § 11359.) The complaint
also alleged that defendant had three prison priors. (Pen. Code, § 667.5 (b)). The
complaint was later amended to include a misdemeanor offense of permitting a passenger
to carry a firearm in his vehicle. (Pen. Code, § 26100, subd. (a).) Defendant pleaded no
contest to both charges and admitted the three prison priors.
       On December 5, 2013, the trial court sentenced defendant to two years pursuant to
Penal Code section 1170, subdivision (h). One year of his sentence was to be served in
county jail, and for the remainder of his sentence, defendant was ordered to be released
on mandatory supervision. The trial court imposed various terms and conditions of
supervised release, including that defendant “not 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.”
                                        DISCUSSION
       Defendant contends that the supervised release condition prohibiting his
possession or use of illegal drugs or illegal controlled substances is unconstitutionally
vague and overbroad because it lacks an express knowledge requirement.
       “In granting probation, courts have broad discretion to impose conditions to foster
rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.
[Citations.]” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121; People v. Leon
(2010) 181 Cal.App.4th 943, 948.) However, probation conditions may be challenged on
the grounds of unconstitutional vagueness and overbreadth. (People v. Lopez (1998) 66
Cal.App.4th 615, 630 (Lopez).) A probation condition may be “ ‘overbroad’ ” if in its
reach it prohibits constitutionally protected conduct. (Ibid.) “The underlying concern of
the vagueness doctrine is the core due process requirement of adequate notice.” (Ibid.,
italics omitted.) 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. To avoid vagueness, a
probation condition “ ‘must be sufficiently precise for the probationer to know what is
required of him. . . .’ [Citations.]” (Ibid.) Absent a requirement that the defendant know
he or she is disobeying the condition, the defendant is vulnerable, and unfairly so, to
punishment for unwitting violations of that condition. (See Id. at pp. 628-629.) An
appellate court is empowered to modify a probation condition in order to render it
                                              2
constitutional. (In re Sheena K. (2007) 40 Cal.4th 875, 892.) Similarly, the same logic
should apply to conditions of mandatory supervision, and thus, we will treat the imposed
condition as akin to a probation condition. (Cf. People v. Griffis (2013) 212 Cal.App.4th
956, 963, fn. 2.)
       Relying on People v. Rodriguez (2013) 222 Cal.App.4th 578 (Rodriguez), the
Attorney General argues that the knowledge requirement may be implied. In Rodriguez,
the defendant challenged, among other things, a probation condition that concerned the
use and possession of “ ‘alcohol, intoxicants, narcotics, or other controlled substances.’ ”
(Id. at p. 583.) The defendant argued that the condition was unconstitutionally vague and
overbroad and that an express knowledge requirement was necessary. As to the
prohibition on controlled substances, this court determined that the knowledge element
was implied because case law had construed criminal statutes proscribing possession of
controlled substances “as including implicit knowledge elements.” (Id. at p. 593 [“
‘[A]lthough criminal statutes prohibiting the possession, transportation, or sale of a
controlled substance do not expressly contain an element that the accused be aware of the
character of the controlled substance at issue ([Health & Saf. Code,] §§ 11350-11352,
11357-11360, 11377-11379), such a requirement has been implied by the courts.’ ”].)
But insofar as the condition concerned alcohol and “ ‘intoxicants,’ ” Rodriguez concluded
that “the addition of an express knowledge requirement will eliminate any potential for
vagueness or overbreadth in applying the condition.” (Id. at p. 594.)
       Although in Rodriguez we recognized an express knowledge requirement may not
have been necessary for a prohibition on the possession and use of controlled substances,
we believe that the inclusion of an explicit knowledge requirement here will ensure clear
notice to defendant and probation authorities of what will constitute a violation.
Accordingly, we will modify the challenged condition to state “The defendant shall not
knowingly possess or use illegal drugs or illegal controlled substances . . . .”


                                              3
                                       DISCUSSION
      The supervised release conditions are modified to reflect the following changes:
      Condition 8: “The defendant shall not knowingly possess or use illegal drugs or
illegal controlled substances or go anywhere he knows illegal drugs or non-prescribed
controlled substances are used or sold.”
      As modified, the judgment is affirmed.




                                           4
                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           ELIA, J.




____________________________________
           MÁRQUEZ, J.




                                   5
