Filed 2/14/14 P. v. Dowell 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                         H039306
                                                                   (Santa Clara County
         Plaintiff and Respondent,                                  Super. Ct. No. C1114484)

            v.

JONATHAN KAWIKA DOWELL,

         Defendant and Appellant.



         Defendant Jonathan Kawika Dowell appeals from a conviction for
methamphetamine possession. On appeal, he contends that the trial court erred in
imposing two probation conditions that are unconstitutionally vague. As set forth below,
we will modify the probation conditions and affirm the judgment as modified.
                                  F ACTUAL AND P ROCEDURAL HISTORY
         During a search following a traffic stop, a police officer found a bag of
methamphetamine in defendant’s pocket. An information subsequently charged
defendant with possession of methamphetamine (Health and Saf. Code, § 11377,
subd. (a)). He pleaded guilty to the charge.
         The trial court suspended imposition of sentence and placed defendant on formal
probation for two years. As a condition of probation, the court ordered that defendant
“shall not possess or consume alcohol or illegal drugs.” As another condition of
probation, the court ordered that defendant “shall not own or possess any firearm or
ammunition for the rest of his life.”
       Defendant filed a timely notice of appeal. This appeal followed.
                                        DISCUSSION
       Defendant contends that the alcohol/drugs condition and the firearms/ammunition
condition are unconstitutionally vague because they do not include knowledge
requirements. He accordingly requests that we modify each condition to impose a
knowledge requirement. The People contend that we should decline to modify the
conditions, as the Third Appellate District did in People v. Patel (2011) 196 Cal.App.4th
956 (Patel). As explained below, we will modify each condition to impose a knowledge
requirement.
       “Constitutional issues are reviewed de novo.” (In re J.H. (2007) 158 Cal.App.4th
174, 183.) Thus, “we review constitutional challenges to a probation condition de novo.”
(In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
       The “underpinning of a vagueness challenge is the due process concept of ‘fair
warning.’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) “The rule of fair warning
consists of ‘the due process concepts of preventing arbitrary law enforcement and
providing adequate notice to potential offenders’ [citation], protections that are
‘embodied in the due process clauses of the federal and California Constitutions .’ ”
(Ibid.) “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.” (Ibid.)
       “California appellate courts have found probation conditions to be
unconstitutionally vague . . . when they do not require the probationer to have knowledge
of the prohibited conduct or circumstances.” (People v. Kim (2011) 193 Cal.App.4th
836, 843 (Kim).) To survive a vagueness challenge, a probation condition that prohibits
possession of particular items must “specify that defendant not knowingly possess the
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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.) In People v. Pirali (2013) 217 Cal.App.4th 1341, we joined these courts
and declined to follow the Patel approach. (Id. at p. 1351.) We must do so again here.
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 conditions to include a
knowledge requirement. We modify the alcohol/drugs condition to state that defendant
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shall not knowingly possess or consume alcohol or illegal drugs. We modify the
firearms/ammunition condition to state that defendant shall not knowingly own or possess
any firearm or ammunition for the rest of his life.
       Citing this court’s decision in Kim, supra, 193 Cal.App.4th 836, the People
additionally contend that an explicit knowledge requirement is not a necessary
component of a probation condition prohibiting possession of firearms and ammunition.
In Kim, the defendant challenged the following probation condition on the ground of
vagueness: “ ‘You shall not own, possess, have within your custody or control any
firearm or ammunition for the rest of your life under Section[s] 12021 and 12316
[subdivision] (b)(1) of the Penal Code.’ ” (Id. at pp. 840, 843.) Kim held that it was
unnecessary to modify the condition to add a knowledge requirement. (Id. at p. 847.)
Kim reasoned, “We conclude that the conduct proscribed by sections 12021 and 12316 is
coextensive with that prohibited by a probation condition specifically implementing those
statutes. As the statutes include an implicit knowledge requirement, the probation
condition need not be modified to add an explicit knowledge requirement.” (Ibid.)
       Defendant’s case is distinguishable from Kim. Unlike the condition at issue in
Kim, the firearms/ammunition condition here does not reference any statutory provision.
Thus, because the condition does not specifically implement a statute that includes a
knowledge requirement, it is unconstitutionally vague and must be modified. (See
People v. Freitas, supra, 179 Cal.App.4th at pp. 750, 752-753 [a probation condition
prohibiting possession of firearms and ammunition, which did not include a specific
reference to a statutory provision, was vague and required modification to include a
knowledge requirement].) The People’s reliance on Kim therefore is unavailing.
                                       DISPOSITION
       The alcohol/drugs condition is modified to state: “Defendant shall not knowingly
possess or consume alcohol or illegal drugs.” The firearms/ammunition condition is


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modified to state: “Defendant shall not knowingly own or possess any firearm or
ammunition for the rest of his life.” As so modified, the judgment is affirmed.


                                         ______________________________________
                                                    RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




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