Filed 8/7/15 P. v. Endicott CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Yuba)
                                                            ----




THE PEOPLE,                                                                                  C077746

                   Plaintiff and Respondent,                                     (Super. Ct. No. CRF14575)

         v.

TIMOTHY EUGENE ENDICOTT, JR.,

                   Defendant and Appellant.




         Defendant Timothy Eugene Endicott, Jr., pleaded no contest to unlawful sexual
intercourse with a minor more than three years younger than himself (Pen. Code, § 261.5,
subd. (c); unless otherwise stated, statutory references that follow are to the Penal Code)
and furnishing marijuana to a minor (Health & Saf. Code, § 11361, subd. (b)), and was
sentenced to three years’ formal probation with certain conditions. On appeal, defendant
challenges a probation condition barring him from purchasing or possessing sexually
explicit materials as unconstitutionally vague. Defendant urges us to reconsider our




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opinion in People v. Patel (2011) 196 Cal.App.4th 956 (Patel) and modify the condition
to include a scienter requirement. We decline to do so and affirm the judgment.

                                 FACTS AND PROCEEDINGS

       On September 23, 2014, a complaint was filed charging defendant, then 19 years
old, with two counts of unlawful sexual intercourse with a minor more than three years
younger than himself (§ 261.5, subd. (c)), and two counts of furnishing marijuana to a
minor (Health & Saf. Code, § 11361, subd. (b)).
       On October 1, 2014, defendant pleaded no contest to one count of unlawful sexual
intercourse with a minor (§ 261.5, subd. (c)) and one count of furnishing marijuana to a
minor (Health & Saf. Code, § 11361, subd. (b)), in exchange for three years’ probation
and dismissal of the other counts. As part of defendant’s plea agreement, the parties also
agreed that he would not be required to register as a sex offender (§ 290) and the
prosecution would not file new charges relating to another alleged victim.
       On October 27, 2014, the trial court accepted defendant’s plea and placed him on
formal probation for a period of three years subject to a number of terms and conditions.
One of these conditions, condition 17, states: “Do not own, use, or possess any form of
sexually explicit movies, videos, materials, or devices unless recommended by a therapist
or approved by the probation officer. Do not visit or remain in any establishment where
such items are the primary items viewed, or sold at such establishment, and do not utilize
any sexually oriented telephone service.” Defendant did not object to condition 17 or any
of the other conditions of probation.




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                                           DISCUSSION

                                               I

                                           Forfeiture

       Preliminarily, the People argue that defendant’s failure to challenge condition 17
has resulted in forfeiture of the issue.
       Our Supreme Court has recognized that “a challenge to a term of probation on the
ground of unconstitutional vagueness or overbreadth that is capable of correction without
reference to the particular sentencing record developed in the trial court can be said to
present a pure question of law” and thus may be reviewed on appeal absent an objection
in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 887 (Sheena K.).)
       Defendant’s challenge to condition 17 raises a pure question of law that is capable
of correction without reference to the particular sentencing record developed in the trial
court. (Sheena K., supra, 40 Cal.4th at p. 887.) We therefore conclude that defendant
has not forfeited his constitutional challenge to the facial validity of condition 17.

                                               II

                                  Constitutional Challenge

       Defendant argues that condition 17 is unconstitutionally vague for failing to
include “an express knowledge requirement.” According to defendant, the condition
should be modified to specify that he may not knowingly possess sexually explicit
materials. The People contend, and we concur, that no such modification is necessary in
light of our opinion in Patel.
       “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair
warning.’ ” (Sheena K., supra, 40 Cal.4th at p. 890.) “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



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the ground of vagueness.” (Ibid.) That is, the defendant must know in advance when he
may be in violation of the condition. “[T]he law has no legitimate interest in punishing
an innocent citizen who has no knowledge of the presence of a [prohibited item].”
(People v. Freitas (2009) 179 Cal.App.4th 747, 752.)
       Defendant does not contend that the category of “sexually explicit movies, videos,
materials or devices” is unconstitutionally vague. He does not complain that he does not
know what items he may possess. (See People v. Turner (2007) 155 Cal.App.4th 1432,
1437 [prohibition on possession of “ ‘sexually stimulating/oriented material’ ” was not
vague or overbroad]; but see Moses (2011) 199 Cal.App.4th 374, 376-377 [accepting the
Attorney General’s concession that same probation condition was unconstitutionally
vague absent knowledge requirement].) Instead, defendant envisions a situation where he
might unwittingly possess sexually explicit materials or visit an establishment where such
materials are viewed or sold. He argues that condition 17 is unconstitutionally vague
because it does not spell out the mental state that would result in a violation under such
circumstances. We addressed this issue in Patel.
       In Patel, we considered a probation condition forbidding the defendant from
drinking or possessing alcohol, or being in a place where alcohol was the chief item of
sale. (Patel, supra, 196 Cal.App.4th at p. 959.) We concluded that the probation
condition was invalid for lack of an express scienter requirement. (Ibid.) However, we
lamented the “dismaying regularity” with which appellate courts must consider
challenges to probation conditions lacking express scienter requirements. (Id. at p. 960.)
We noted the “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,” and announced that we would “no longer entertain this
issue on appeal, whether at the request of counsel or on our own initiative.” (Ibid.)
Instead, we held that we would “construe every probation condition proscribing a
probationer’s presence, possession, association, or similar action to require the action be

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undertaken knowingly.” (Ibid.) Following our opinion in Patel, it is “no longer . . .
necessary to seek a modification of a probation order that fails to expressly include such a
scienter requirement.” (Id. at pp. 960-961.)
       We acknowledge a split of authority on the question whether probation conditions
restricting a probationer’s presence, possession, or association must include an express
scienter requirement, but adhere to our view that scienter is implied. (Patel, supra,
196 Cal.App.4th at pp. 960-961; but see Pirali (2013) 217 Cal.App.4th 1341, 1351
[declining to follow Patel and choosing to modify probation conditions on a case-by-case
basis to make knowledge requirement explicit]; Moses, supra, 199 Cal.App.4th at p. 381
[same].)
       Condition 17, like the probation conditions in Patel, proscribes defendant’s
presence, possession, association, or similar action. (Patel, supra, 196 Cal.App.4th at
p. 960.) Accordingly, we construe condition 17 to require that the proscribed conduct be
undertaken knowingly. Thus, we need not modify condition 17 to add an express
knowledge requirement because scienter is already implied.

                                       DISPOSITION

       The judgment and order of probation are affirmed.



                                                       HULL                  , Acting P. J.


We concur:



      MAURO                 , J.



      RENNER                , J.


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