Filed: 12/3/13
                           CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT

THE PEOPLE,                                          H038616
                                                    (Monterey County
        Plaintiff and Respondent,                    Super. Ct. No. SS120588)

        v.

JAIME MATA MENDEZ,

        Defendant and Appellant.


                                     I.   INTRODUCTION

        The sole issue presented by this appeal is whether a probation condition is
unconstitutionally vague when it prohibits an adult convicted of possessing a controlled
substance from associating with certain types of persons “ ‘you know, or reasonably
should know’ ” are drug users, probationers, or parolees. Defendant Jaime Mendez
contends that an “ ‘actual knowledge’ ” requirement is constitutionally mandated. For the
reasons stated below, we will reaffirm our position that language allowing either actual or
constructive knowledge is constitutionally clear.
                             II.   TRIAL COURT PROCEEDINGS

        On March 30, 2012, defendant and four male companions were contacted by
Salinas police officers investigating a report of drug sales in a city park. Inside a
flashlight carried by defendant was a baggie containing 0.4 grams of cocaine. Defendant,
then 45 years old, admitted that the flashlight and its contents were his and said that he
had relapsed into narcotics use two months earlier after two years of abstinence. One of
his companions had a baggie of marijuana.
       Defendant was charged by complaint with possessing cocaine. (Health & Saf.
Code, § 11350, subd. (a).) On April 9, 2012, assisted by an interpreter, defendant
admitted on a change of plea form that he “was in possession of a small amount of a
controlled substance” and pleaded guilty to the charge on the understanding he would
immediately be placed on “Proposition 36 probation.” (Pen. Code, § 1210.1.)1
       On the same day, the court suspended imposition of sentence for 18 months and
placed defendant on probation with a number of conditions, including attending
substance abuse counseling programs as directed by the court. Defendant orally accepted
all the terms and conditions of participating in the Proposition 36 program.
       Defendant failed to appear at a scheduled review hearing on April 26, 2012 and
his Proposition 36 probation was summarily revoked. He was later arrested on a bench
warrant and appeared in custody on May 24, 2012.
       At a hearing on June 5, 2012, defense counsel acknowledged that defendant was
subject to a federal Immigration and Customs Enforcement hold. In light of this, the
court terminated Proposition 36 probation, recognizing that defendant would be unable to
participate in such a program.
       The probation report prepared for sentencing acknowledged that defendant was
likely to be deported after sentencing and recommended suspending imposition of
sentence for three years and placing defendant on formal probation subject to 20
numbered conditions, including: “10. Not use or possess alcohol, intoxicants, narcotics,
or other controlled substances without the prescription of a physician; not traffic in, or
associate with persons you know, or have reason to know, to use or traffic in[] narcotics
or other controlled substances” and “16. Not associate with any individuals you know,



       1
           Unspecified section references are to the Penal Code.



                                              2
have reason to know, or are told by the Probation Officer to be drug users, or on any form
of probation or parole supervision.”
      At the sentencing hearing on July 5, 2012, defense counsel objected to the “
‘reason to know’ ” language in proposed conditions 10 and 16. The following dialog
ensued.
      “THE COURT: I think most of the Sixth District of Appeals [sic] I believe have
upheld ‘you know or have reason to know.’ Why would you object? If you can give me
a basis, I can consider it. That would be under number 10 and number 16.
      “[Defense counsel]: Yes. We believe that the language is vague since it’s hard to
have a reason to know.
      “THE COURT: Well, it’s saying if you have a reason to know. So, that means if
there’s something that says to you that it’s reasonable that you know someone is either
using narcotics or you have a reason to believe or know that someone is on probation or
parole, then that’s when it would be a violation of probation. If you don’t have a reason
to know and you come to court and say, I didn’t know the person is on probation, you had
no reason to know.
      “I can add ‘reasonably should know,’ which is probably a stricter language and the
Sixth District Court of Appeal have approved ‘have reason to know or reasonably should
know.’ We can add that. Maybe that’s clearer that he ‘reasonably should know or does
know.’
      “All it is is just a knowledge requirement. You can’t violate your probation unless
there’s some sort of knowledge or you reasonably should know that your conduct is in
violation of your probation.”
      At the hearing, the court stated the 10th condition as “not traffic in or associate
with persons you know are trafficking in narcotics or other controlled substances, or you
reasonably should know or have reason to know are using narcotics or trafficking in
narcotics or other controlled substances,” and the 16th condition as “You’re not to

                                             3
associate with any individuals you know or you have reason to know or reasonably
should know and are told by the probation officer - or told by the probation officer to be
drug users or on any form of probation or parole supervision.”2
       Assisted by an interpreter, defendant again said he understood and accepted all
probation conditions.
                         III.   SCOPE AND STANDARD OF REVIEW

       Defendant’s sole contention on appeal is that two of his probation conditions are
unconstitutionally vague. He does not contend that they are unreasonable or
unconstitutionally overbroad. There is no question of forfeiture as he made this objection
in the trial court.
       It is well-established that 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 [constitutional] challenge on the
ground of vagueness . . . .” (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).)
       If the vagueness of a probation condition may be corrected “without reference to
the particular sentencing record developed in the trial court” (Sheena K., supra, at p.
887), an issue of law arises subject to de novo review on appeal. (In re Shaun R. (2010)
188 Cal.App.4th 1129, 1143.)




       2
         We note that the trial court alternatively used the phrases “reasonably should
know” and “has reason to know.” Our analysis applies equally to both expressions of
constructive knowledge.



                                              4
                                       IV.   ANALYSIS

       A. SHEENA K. AND ACTUAL KNOWLEDGE LANGUAGE

       Defendant cites Sheena K., supra, 40 Cal.4th 875 for the proposition that “a
condition that prohibits certain conduct must contain an actual knowledge requirement.”
We read that opinion differently, as we shall explain.
       At issue in that case was a condition prohibiting “association with ‘anyone
disapproved of by probation . . . .’ ” (Sheena K., supra, at p. 889.) First, the court held
probation conditions to the due process requirements of penal statutes. “As we have
explained on other occasions, the underpinning of a vagueness challenge is the due
process concept of ‘fair warning.’ (People v. Castenada (2000) 23 Cal.4th 743, 751.)
The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law
enforcement and providing adequate notice to potential offenders’ (ibid.), protections that
are ‘embodied in the due process clauses of the federal and California Constitutions.
(U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7).’ (Ibid.) The vagueness doctrine ‘
“bars enforcement of ‘a statute which either forbids or requires the doing of an act in
terms so vague that men of common intelligence must necessarily guess at its meaning
and differ as to its application.’ ” [Citations.]’ (People ex rel. Gallo v. Acuna (1997) 14
Cal.4th 1090, 1115 (Acuna).) A vague law ‘not only fails to provide adequate notice to
those who must observe its strictures, but also “impermissibly delegates basic policy
matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis,
with the attendant dangers of arbitrary and discriminatory application.” [Citation.]’ (Id.
at p. 1116.)” (Sheena K., supra, 40 Cal.4th at p. 890.)
       Next, applying these general principles to the condition in question, the Supreme
Court found that without an express knowledge element, the 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


                                              5
disapproved of by her probation officer.” (Sheena K., supra, at pp. 891-892.) The court
noted that there were no “additional oral or written comments” by the trial court
clarifying what knowledge was required. (Id. at p. 891.)
       The court went on to state: “Additionally, we agree with the Court of Appeal that
modification to impose an explicit knowledge requirement is necessary to render the
condition constitutional. (See, e.g., [In re] Justin S. [(2001)] 93 Cal.App.4th [811] at p.
816 [probation condition modified to forbid the minor’s association ‘ “with any person
known to you to be a gang member” ’]; People v. Lopez [(1998)] 66 Cal.App.4th [615] at
p. 629, fn. 5 [condition of probation modified to prohibit defendant from associating ‘
“with any person known to defendant to be a gang member” ’]; People v. Garcia (1993)
19 Cal.App.4th 97, 103 [condition of probation modified to provide that the defendant ‘is
not to associate with persons he knows to be users or sellers of narcotics, felons, or ex-
felons’].)” (Sheena K., supra, 40 Cal.4th at p. 892.)3
       The intermediate court in Sheena K. had “modified the dispositional order to
require that defendant refrain from associating with anyone whom she knew was
disapproved of by her probation officer . . . .” (Sheena K., supra, at p. 880.) The
Supreme Court explained that this modification was consistent with its opinion in Acuna,
supra, 14 Cal.4th 1090 involving an anti-gang injunction. (Sheena K., supra, at p. 892.)
The court in Acuna had “advised that in order to enforce the injunction, the local entity
‘would have to establish a defendant’s own knowledge of his associate’s gang
membership to meet its burden of proving conduct in violation of the injunction.’ (Id. at
p. 1117.) We suggested that the element of a defendant’s knowledge fairly was implied


       3
          It is notable that in Sheena K. the Supreme Court was not required to craft a
constitutional modification to the challenged condition because the probationer had died
pending the appeal. (Sheena K., supra, 40 Cal.4th 875, 879.) Despite the appeal’s
mootness, the court reached the issues to resolve a conflict in authority. (Ibid.)



                                              6
in the injunction, and if any attempt were made to enforce that provision, the trial court
could limit its construction by inserting a knowledge requirement.” (Sheena K., supra, at
p. 892.) The Supreme Court suggested “that form probation orders be modified so that
such a restriction explicitly directs the probationer not to associate with anyone ‘known
to be disapproved of’ by a probation officer or other person having authority over the
minor,” in order to forestall future claims identical to the one before the court. (Ibid.)
       We understand Sheena K. to have affirmatively answered two questions: should
the probation condition be interpreted to require knowledge and should the knowledge
element be explicit? The court did not discuss whether the required knowledge must be
actual or could be constructive. As that separate issue was not decided in Sheena K., we
do not interpret the court’s implicit approval of adding actual knowledge as precluding
probation conditions which reference constructive knowledge.
       B.   CONSTRUCTIVE KNOWLEDGE LANGUAGE

       Opinions after Sheena K. have cured vagueness by adding an express constructive
knowledge element. In People v. Turner (2007) 155 Cal.App.4th 1432, the court
reasoned that “[a] person may reasonably not know whether he or she is associating with
someone under the age of 18. Fair notice, as described in Sheena K., is not possible
unless the probation condition is modified to require that defendant must either know or
reasonably should know that persons are under 18 before he is prohibited from
associating with them.” (Id. at p. 1436.) The court modified the association condition
accordingly. (Id. at pp. 1436-1437.)
       In People v. Moses (2011) 199 Cal.App.4th 374 (Moses), the court modified six
different conditions to include both actual and constructive knowledge requirements.
One of the conditions modified is quite close to the conditions challenged here, “ ‘You are
not to associate with persons you know or reasonably should know to be parolees,




                                              7
convicted felons, users or sellers of illegal drugs, or otherwise disapproved by the
probation officer.’ ” (Id. at p. 382.)
       C.   PENAL STATUTES AND CONSTRUCTIVE KNOWLEDGE

       The California Legislature has employed the “reasonably should know” standard
in defining a variety of criminal offenses. When a person commits an assault by weapon
“upon the person of a peace officer or firefighter, and who knows or reasonably should
know that the victim is a peace officer or firefighter engaged in the performance of his or
her duties,” the resulting sentence is greater depending on the type of weapon used. (§
245, subds. (c), (d); cf. §§ 241.1, 245.3 [when person “reasonably should know that the
victim is a custodial officer”].) This is also true of battery. (§ 243, subd. (b).) Sentences
of death or life without parole may be justified by the special circumstance of the murder
victim being either a peace officer, federal law enforcement office, or firefighter when
the victim was intentionally killed by someone who “knew, or reasonably should have
known” that the victim was performing his duties. (§ 190.2, subd. (a) (7), (8), (9).)
       School employees and school board members have similar protection against
assaults by weapon (§ 245.5), unarmed assaults (§ 241.6), and batteries (§ 243.6), as do
highway workers (§ 243.65) and sports officials (§ 243.8).
       It is a crime for a person, whether or not a caretaker, “who knows or reasonably
should know that a person is an elder or dependent adult” to willfully cause or permit the
elder or dependent adult to suffer. (§ 368, subd. (b)(1), (c); Welf. & Inst. Code, § 15656,
subds. (a), (b).)
       One form of rape involves the victim being drugged into acquiescence when “this
condition was known, or reasonably should have been known by the accused.” (§ 261,
subd. (a)(3).) The phrase “reasonably should know” is employed in a variety of statutes
too numerous to compile here. (E.g., Health & Saf. Code, § 11364.7 [delivering,




                                              8
furnishing, or transferring drug paraphernalia]; § 25200 [storing a firearm that a child
carries off-premises].)
       Of course, the Legislature’s repeated use of the phrase does not establish its
constitutionality. But a due process challenge to one of these statutes was rejected in
People v. Mathews (1994) 25 Cal.App.4th 89 (Mathews). The defendant in that case was
convicted of drawing or exhibiting a firearm in a rude, angry, or threatening manner in
the immediate presence of a peace officer by a person “who knows, or reasonably should
know, that the victim is a peace officer engaged in the performance of his or her duties.”
(§ 417, subd. (c).) The court concluded that “[c]ulpability based on the ‘should have
known’ constructive knowledge standard is not vague or overbroad.” (Mathews, supra,
at p. 98.)
       Defendant cites In re Jorge M. (2000) 23 Cal.4th 866 (Jorge M.) as an example of
a criminal statute that “permissibly included a ‘reasonable knowledge’ element.” The
Assault Weapons Control Act (since recodified) at issue in that case had no express
knowledge requirement, so the first question for the Supreme Court was whether the
statute had any implicit scienter requirement or instead described public welfare offenses
involving no mens rea. After concluding that a scienter requirement was implicit, the
court considered the next question of the nature of the implied mental element.
       Acknowledging the problem of establishing what a person actually knows, the
court stated, “An actual knowledge element has significant potential to impair effective
enforcement.” (Jorge M., supra, 23 Cal.4th at p. 884.) “A scienter requirement satisfied
by proof the defendant should have known the characteristics of the weapon bringing it
within the AWCA, however, would have little or no potential to impede effective
enforcement.” (Id. at p. 885.) The court determined that proving a violation of the
Assault Weapons Control Act required showing “that a defendant charged with
possessing an unregistered assault weapon knew or reasonably should have known the
characteristics of the weapon bringing it within the registration requirements of the

                                             9
AWCA.” (Id. at pp. 869-870.) The court indicated that this lesser mental element was
constitutional. “That a criminal statute contains one or more ambiguities requiring
interpretation does not make the statute unconstitutionally vague on its face [citation], nor
does it imply the statute cannot, in general, be fairly applied without proving knowledge
of its terms.” (Id. at p. 886.) Acknowledging that its “ ‘reasonably should have known’
formulation departs somewhat from the usual description of criminal negligence” (id. at
p. 887, fn. 11), the court asserted that its formulation of the scienter element “is sufficient
to protect against any significant possibility of punishing innocent possession.” (Id. at p.
886.)
        The constitutionality of the newly described mental element was not before the
Supreme Court in Jorge M., but the court addressed the topic in dictum. The thoughtful
dictum and the holding of Mathews establish that there is nothing unconstitutionally
vague about a penal statute including a constructive knowledge element. After all, this
formulation is similar to the familiar reasonable person standard. (Cf. People v. Valdez
(2002) 27 Cal.4th 778, 783 [criminal negligence standard for willful child abuse under §
273a involves an objective test based on a reasonable person’s awareness of the risk];
People v. Beltran (2013) 56 Cal.4th 935, 942, 949 [heat of passion that reduces murder to
manslaughter is what would cause an ordinary reasonable person to act without
deliberation].)
        Defendant recognizes the authority of Jorge M. and Mathews, but argues
essentially that probationers are entitled to greater clarity in probation conditions than the
general public is in penal statutes, stating: “A probationer stands in a different position
than an ordinary citizen. Unlike most citizens, a probationer is subject to the supervision
of a governmental official (i.e. a probation officer). In order to successfully complete the
rehabilitative process provided by a grant of probation, it is essential that a probationer be
provided with adequate and precise guidance as to the prohibitions which are attendant to



                                              10
the probationary process. (In re Sheena K., supra, 40 Cal.4th 875, 890.) For this reason,
an actual knowledge standard is required. (Id. at p. 891.)”
       We agree with defendant that probation conditions, including those restricting
noncriminal behavior, must provide adequate guidance to probationers. Particularly
when the behavior is otherwise constitutionally protected, the elements of a violation
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.
       Defendant suggests that an objective reasonable person standard is appropriate
only when “it would essentially be impossible for an observer not to know the status of
the person in question” and that the Legislature has carefully limited its use in this way.
However, as our discussion of various statutes indicates, the Legislature has extended its
reach to individuals whose status may not be readily apparent, such as dependent adults,
non-sworn employees of probation departments, and school employees.
       Holding a probationer to the standard of a reasonable person should promote his or
her rehabilitation, not subvert it. A probationer should be encouraged to be aware of the
status of acquaintances and to actively avoid potentially dangerous companions. Willful
ignorance of warning signs should not be rewarded by the conclusion that a probation
condition was not violated because the probationer did not actually, subjectively
recognize a companion’s symptoms of drug use.
       Some of the commentary to the Model Penal Code’s discussion of the justification
for criminal liability based on criminal negligence is apt here. Holding a probationer to
the standard of a reasonable person supplies “ ‘an additional motive to take care before
acting, to use their faculties and draw on their experience in gauging the potentialities of
contemplated conduct. To some extent, at least, this motive may promote awareness and
thus be effective as a measure of control. . . .’ (Model Pen. Code, § 2.02, com. at p.
243.)” (People v. Rodriguez (1986) 42 Cal.3d 730, 781.)



                                             11
         We foresee no difficulty either with a probationer understanding what is required
by such a condition or with a court determining whether such a condition has been
violated. It may in fact be easier to establish what a probationer reasonably should know
than to delve into the epistemological depths of what the probationer actually knows. We
conclude that the challenged probation conditions are not unconstitutionally vague.
         D.   PEOPLE V. GABRIEL

         Defendant asserts that this court’s decision in People v. Gabriel (2010) 189
Cal.App.4th 1070 (Gabriel) supports an actual knowledge requirement. Gabriel
challenged as vague a probation condition requiring that he “ ‘[n]ot associate with any
individuals you know or suspect to be gang members, drugs users, or on any form of
probation or parole supervision.’ ” (Id. at p. 1073.)
         Gabriel reasoned: “To ‘suspect’ is ‘to imagine (one) to be guilty or culpable on
slight evidence or without proof’ or ‘to imagine to exist or be true, likely, or probable.’
(Merriam-Webster’s Collegiate Dict. (10th ed.1999) p. 1187 (Webster’s ).) To ‘imagine’
is ‘to form a notion of without sufficient basis.’ (Webster’s, at p. 578.) Given this lack of
specificity, the word ‘suspect’ fails to provide defendant with adequate notice of what is
expected of him when he lacks actual knowledge that a person is a gang member, drug
user, or on probation or parole. Moreover, inclusion of this word renders the condition
insufficiently precise for a court to determine whether a violation has occurred.
Accordingly, this condition must also be modified to delete the word ‘suspect.’ ”
(Gabriel, supra, at p. 1073.)
         The probation condition in Gabriel did not expressly require the probationer to
have a reasonable suspicion of his companion’s status. “Reasonable suspicion” is a
familiar concept in the law of search and seizure that involves an objective standard.
(E.g., U.S. v. Sokolow (1989) 490 U.S. 1, 7-8; People v. Wells (2006) 38 Cal.4th 1078,
1083.)


                                              12
      Gabriel determined that a mental element based on the probationer’s subjective
suspicion would create enforcement problems. It did not discuss or determine whether
other mental elements such as constructive knowledge would be impermissibly vague.
We find no inconsistency between Gabriel and our conclusion that “reasonably should
know” is not unconstitutionally vague as used in the challenged conditions.
                                    V.   DISPOSITION

      The order granting probation is affirmed.



                                          ____________________________________
                                          Grover, J.




WE CONCUR:




____________________________
Premo, Acting P.J.




____________________________
Mihara, J.




                                            13
Trial Court:                          Monterey County Superior Court, Case
                                      No.: SS120588

Trial Judge:                          Hon. Marla O. Anderson, Judge.

Attorneys for Plaintiff/Respondent:   Kamala D. Harris
                                       Attorney General of California
The People
                                      Dane R. Gillette
                                       Chief Assistant Attorney General

                                      Gerald A. Engler
                                       Senior Assistant Attorney General

                                      Laurence K. Sullivan
                                       Supervising Deputy Attorney General

                                      Rene A. Chacon
                                       Supervising Deputy Attorney General

Attorneys for Defendant/Appellant:    William M. Robinson
                                       Assistant Director, Sixth District
Jaime Mata Mendez                     Appellate Program




People v. Mendez
H038616
